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KARL LLEWELL YN AND THE REALIST
MOVEMENT, SECOND EDITION

First published in 1973, Karl Llewellyn and the Realist Movement is

recognized as a classic account of American Legal Realism and its
leading figure. Karl Llewellyn is the best known and most substan-
tial jurist of the variegated group of lawyers known as the American
Realists. A man of wide interests and colorful character, he made
important contributions to legal theory, legal sociology, commer-
cial law, contract law, civil liberties, and legal education.
This intellectual biography sets Llewellyn in the broad context of
the rise of the American Realist movement and contains a brief over-
view of Llewellyn’s life and character before focusing attention on
his most important works, including The Cheyenne Way, The Bramble
Bush, The Common Law Tradition, the Uniform Commercial Code, and
some significant manuscripts. In this second edition the original
text is unchanged and is supplemented with a foreword by Frederick
Schauer and a lengthy afterword in which William Twining gives a
fascinating personal account of the making of the book and com-
ments on developments in relevant legal scholarship over the past
forty years.

William Twining is the Quain Professor of Jurisprudence Emeritus

at University College London and a regular Visiting Professor at the
University of Miami School of Law. He was a pupil of Karl Llewellyn
in 1957–58 and put Llewellyn’s very extensive papers in order after
his death in 1962. Twining’s recent writings include Rethinking Evi-
dence (2nd edition, 2006), General Jurisprudence (2009), and How
to Do Things with Rules (5th edition with David Miers, 2010), all
published by Cambridge University Press and recognizable as part
of the Realist tradition.
THE LAW IN CONTEXT SERIES
Editors: William Twining (University College London),
Christopher McCrudden (The Queen’s University, Belfast), and
Bronwen Morgan (University of Bristol)

Since 1970 the Law in Context series has been in the forefront of the move-
ment to broaden the study of law. It has been a vehicle for the publication of
innovative scholarly books that treat law and legal phenomena critically in
their social, political, and economic contexts from a variety of perspectives.
The series particularly aims to publish scholarly legal writing that brings
fresh perspectives to bear on new and existing areas of law taught in univer-
sities. A contextual approach involves treating legal subjects broadly, using
materials from other social sciences, and from any other discipline that
helps to explain the operation in practice of the subject under discussion. It
is hoped that this orientation is at once more stimulating and more realistic
than the bare exposition of legal rules. The series includes original books
that have a different emphasis from traditional legal textbooks, while main-
taining the same high standards of scholarship. They are written primarily
for undergraduate and graduate students of law and of other disciplines,
but most also appeal to a wider readership. In the past, most books in the
series have focused on English law, but recent publications include books
on European law, globalization, transnational legal processes, and compara-
tive law.

books in the series

Anderson, Schum, & Twining: Analysis of Evidence
Ashworth: Sentencing and Criminal Justice
Barton & Douglas: Law and Parenthood
Beecher-Monas: Evaluating Scientific Evidence: An Interdisciplinary Framework
for Intellectual Due Process
Bell: French Legal Cultures
Bercusson: European Labour Law
Birkinshaw: European Public Law
Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal
Brownsword & Goodwin: Law and the Technologies of the Twenty-First
Century: Text and Materials
Cane: Atiyah’s Accidents, Compensation and the Law
Clarke & Kohler: Property Law: Commentary and Materials
Collins: The Law of Contract
Cowan: Housing Law
Cranston: Legal Foundations of the Welfare State
Dauvergne: Making People Illegal: What Globalisation Means for Immigration
and Law
Davies: Perspectives on Labour Law
Dembour: Who Believes in Human Rights?: The European Convention in
Question
(continued after the index)
Karl Llewellyn
and the
Realist Movement
Second Edition

William Twining
University College London
c ambri d ge u n iv e r s it y p r e s s
Cambridge, New York, Melbourne, Madrid, Cape Town,
Singapore, São Paulo, Delhi, Mexico City

Cambridge University Press

32 Avenue of the Americas, New York, n y 10013-2473, u s a

www.cambridge.org
Information on this title: www.cambridge.org/9781107023383

© William Twining 1973, 2012

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.

First published 1973

Second edition published 2012

A catalog record for this publication is available from the British Library.

isb n 978-1-107-02338-3 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of

urls for external or third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such Web sites is, or will remain,
accurate or appropriate.

Cover photo: The photograph depicts a bust of Llewellyn by the Russian sculptor
Sergei Konenkov, who later came to be regarded as one of the leading Russian art-
ists of the twentieth century. Karl and Betty Llewellyn befriended Konenkov in New
York in 1924 and helped him to obtain commissions for busts of leading American
luminaries, including three Supreme Court Justices. (See M. T. Lampard, J. E. Bowlt,
and W. R. Salmond, The Uncommon Vision of Sergei Konenkov 1974–1971: A Russian
Sculptor and His Times, New Brunswick: Rutgers University Press, 2001; KLRM 421,
447.) The original of the Llewellyn bust is in the University of Chicago Law School,
and a cast is in the University of Miami Law School.
 CO N T E N TS

Foreword by Frederick Schauer page ix

Preface xxv
Postscript xxviii
Acknowledgements xxxi
Abbreviations xxxii
Part I Th e Ri se of t he Re a l i st M ove me n t
1 87 0 – 1 9 3 1
Introduction 3
1 Langdell’s Harvard 10
2 Corbin’s Yale, 1897–1918 26
3 Columbia in the 1920s 41
4 The Aftermath of the Split 56
5 The Realist Controversy, 1930–1931 70
Part II Th e L i fe a nd Wor k of Ka rl L l e w e l lyn :
A C a se St udy
6 The Man 87
7 Two Early Works 128
8 The Cheyenne Way 153
9 Law in Our Society 170
10 The Common Law Tradition 203
11 The Genesis of the Uniform Commercial Code 270
12 The Jurisprudence of the Uniform
Commercial Code 302
13 Miscellaneous Writings 341
14 The Significance of Llewellyn: An Assessment 366
Part III Con c l usi on
15 The Significance of Realism 375
viii c onte nt s

Afterword: Framing Llewellyn 388

Notes 444
Appendices
A The War Adventure 535
B A Restatement of Llewellyn’s Theory of Rules 544
C Extracts from Law in Our Society 553
D Llewellyn’s Later Interpretations of Realism 573
E Two Documents on the Uniform
Commercial Code 580
F The Pueblo Codes 602
Bibliography 611
General Index 619
F OR E WOR D

Frederick Schauer

Legal Realism is contested terrain. Whether we label the perspective

legal realism, or Legal Realism, or American Legal Realism, there have
been for at least eighty years serious disputes about just what Legal
Realism is and what it claims. Moreover, the terrain is contested not
merely because there are disagreements around the edges – that is,
with respect to the borderline cases of what is or is not a Realist per-
spective.1 Rather, the very nature of Legal Realism is contested, as we
can see from the existence of widely divergent views about just what
the core claims and commitments of Legal Realism are.
A sample of the various positions claiming the Legal Realist ban-
ner will make the extent of this disagreement clearer. Thus, some
theorists believe that Legal Realism is centrally about the relative
importance of facts in adjudication, in contrast to a traditional view
allegedly holding that abstract rules are more important deter-
minants of legal outcomes than are the facts of particular cases.2

1
In this foreword, Legal Realism will be capitalized, in part to emphasize the differ-
ences between Legal Realism as a view about some or many aspects of law, on one
hand, and the various forms of philosophical realism, on the other. In the fields of
metaphysics and meta-ethics, for example, realist perspectives stress the existence
of some external or objective reality, as opposed to the view that what we perceive
as moral or physical reality is no more than the creation of human cultures or the
minds of individual human beings. By stressing the mind independence of an
external reality, therefore, most embodiments of philosophical realism are virtu-
ally the exact opposite of Legal Realism, at least insofar as Legal Realism in most
of its forms is understood to place an emphasis on discretion, indeterminacy, non-
objectivity, and the human element in legal decision making.
2
See especially Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Real-
ism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007);
x foreword

Those who subscribe to this understanding of Legal Realism’s core

commitments do not, of course, saddle the traditional view with
the implausible position that abstract legal rules can be applied
to particular cases without regard to the facts presented in those
cases. Nevertheless, an important difference remains in emphasis
between a traditional view that the determination of which facts
are relevant comes from preexisting legal rules, and a Legal Realist
view holding that judicial and other legal decisions are made pri-
marily on the basis of all the facts of a particular controversy that a
particular judge deems relevant, without regard to whether some
array of preexisting legal rules makes those facts relevant.
Closely allied with this view about the importance of the facts of
particular controversies is the idea that realism is centrally about
the sequencing of decision making and justification. Going back at
least as far as Judge Joseph Hutcheson’s famous 1929 article about
the role of the hunch in judicial decision making,3 and continuing
as the primary point of Jerome Frank’s Law and the Modern Mind,4
theorists and commentators often designated as Legal Realists
have argued that judges do not first consult the law and thereafter
reach a decision on the basis of that law, as the traditional picture
would have it. Rather, Hutcheson and Frank and many others have
claimed, judges initially reach a decision about which party ought
to prevail, often on the basis of a full range of both legal and non-
legal facts and factors, and then, and only then, do they consult the
law in order to justify or rationalize a decision made substantially
on nonlegal grounds.
Still another view of Realism contrasts realism with formalism, or
at least something claimed to be formalism.5 Here Realism’s target

Brian Leiter, “American Legal Realism,” in Martin P. Golding & William A.

Edmundson, eds., Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford:
Blackwell Publishing, 2005), pp. 50–66; Brian Leiter, “Legal Realism,” in Dennis
Patterson, ed., A Companion to Philosophy of Law and legal Theory (Oxford: Black-
well Publishers, 1996), pp. 261–79.
3
Joseph J. Hutcheson, Jr., “The Judgment Intuitive: The Function of the ‘Hunch’
in Judicial Decision,” Cornell Law Journal, vol. 14 (1929), pp. 274–88.
4
Jerome Frank, Law and the Modern Mind (New York: Brentano’s, 1930).
5
See Laura Kalman, Legal Realism at Yale 1927-1960 (Chapel Hill, North Carolina:
University of North Carolina Press, 1986). See also Theodore M. Benditt, Law
as Rule and Principle: Problems of Legal Philosophy (Stanford, California: Stanford
University Press, 1978), pp. 2–5; Brian Bix, Jurisprudence: Theory and Context
(London: Sweet & Maxwell, 3d ed., 2003), pp. 179–80; Robert S. Summers, Form
 foreword xi

is said to be the view that law is often, usually, or almost always

determinate, such that the law dictates a particular result, or at
least renders ineligible most of the outcomes that would be other-
wise eligible on moral, political, economic, or pragmatic grounds.6
The Realist challenge to this view, a challenge sometimes described
in terms of indeterminacy7 and sometimes in terms of functional-
ism or instrumentalism,8 is the view that in all, most, or many cases,
especially in the controversies that wind up in court or wind up
in appellate courts, the law simply does not uniquely determine a
result, the consequence being that the law leaves open to the judge
or other decision maker a wide range of possible results, results
that the decision maker may or must select on nonlegal grounds.9
The foregoing forms of Legal Realist claims are all about judi-
cial decision making, but other Realist perspectives are about aca-
demic or empirical method. What do we want to know about law,
and how do we go about finding it? Thus, Legal Realism is often
thought of as the empirical (and largely external) examination of
law and its processes, with the aim of allowing lawyers and others
to predict legal outcomes,10 or of offering social science insights

and Function in a Legal System (New York: Cambridge University Press, 2006),
pp. 28–9; Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cam-
bridge: Cambridge University Press, 1998), pp. 75–83; Brian Z. Tamanaha,
Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton, New
Jersey: Princeton University Press, 2010).
6
For an analysis and qualified defense of formalism, see Frederick Schauer, “For-
malism,” Yale Law Journal, vol. 97 (1988), pp. 509–48.
7
See Kent Greenawalt, Law and Objectivity (New York: Oxford University Press,
1992), p. 11; Roger Shiner, Norm and Nature: The Movements of Legal Thought
(Oxford: Clarendon Press, 1992), p. 217; Mark Tushnet, Red, White, and Blue:
A Critical Analysis of Constitutional Law (Cambridge, Massachusetts: Harvard
University Press, 1988), pp. 191–6.
8
Kalman, op. cit. note 5, pp. 29–31.
9
See Brian Leiter, “Law and Objectivity,” in Jules Coleman & Scott Shapiro, eds.,
Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University
Press, 2002), pp. 969–89.
10
The importance of seeing law at least partly in terms of predicting legal out-
comes is a major theme of Oliver Wendell Holmes, “The Path of the Law,” Har-
vard Law Review, vol. 10 (1897), pp. 457–78. The Realists embraced this idea,
see, for example, Karl N. Llewellyn, The Theory of Rules (Frederick Schauer, ed.,
Chicago: University of Chicago Press, 2011), pp. 55–60, but took it one step fur-
ther. Holmes believed that knowledge of legal rules and legal categories would
facilitate accurate prediction, but the Realists, contra Holmes, stressed that
identifying various nonlegal factors would often make for better predictions.
xii foreword

or conclusions about the nature of law itself, or, more commonly,

identifying the determinants of legal outcomes. And thus a com-
mon claim is that a multiplicity of different forms of social science
inquiry about law and legal decision making, forms of inquiry that
are to be contrasted with the close textual and doctrinal analysis
that still pervade legal education and legal scholarship, constitute
the preeminent contribution of Legal Realism.11
A more modern characterization of Realism goes in a quite dif-
ferent direction, focusing less on judicial decision making and more
on the substance of law. More particularly, this view, which tends
to see Robert Hale12 as a central figure in the Realist tradition,13
understands Legal Realism as the denial of law’s alleged neutrality.
Legal rules and doctrines, according to this critique, are traditionally
thought to be natural, neutral, or both.14 To the extent that this view
exists, then the contrasting view – that legal rules or legal baselines

And thus the modern political scientists who emphasize the role of nonlegal
factors in determining and predicting Supreme Court decisions are properly
understood as heirs to this strand of Realism. See, for example, Saul Brenner
& Harold J. Spaeth, Stare Indecisis: The Alteration of Precedent on the Supreme Court
, 1946-1992 (New York: Cambridge University Press, 1996); Jeffrey J. Segal &
Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (New York:
Cambridge University Press, 2004). For a valuable analysis of the relationship
among prediction, Holmes, and Realism, see William Twining, “The Bad Man
Revisited,” Cornell Law Review, vol. 58 (1972), pp. 275–303.
11
See John Henry Schlegel, American Legal Realism and Empirical Social Science
(Durham, North Carolina: University of North Carolina Press, 1995); Brian Z.
Tamanaha, Realistic Socio-Legal Theory (Oxford: Clarendon Press, 1997).
12
See Robert L. Hale, “Coercion and Distribution in a Supposedly Non-Coercive
State,” Political Science Quarterly, vol. 38 (1923), pp. 470–9.
13
Hale, an economist and lawyer, was a Columbia colleague of Llewellyn’s, but
Llewellyn does not list him among the Realists in Karl Llewellyn “Some Realism
About Realism,” Harvard Law Review, vol. 44 (1931), pp. 1222–64. This exclu-
sion may or may not be telling about Llewellyn’s view of the core commitments
of Realism, although the exclusion of Hale may be no more dispositive than the
inclusion of Edwin Patterson, whose work bears few earmarks of any Realist per-
spective. See William Twining, this volume, p. 410 note 33.
14
Blackstone is a particularly common target. See Duncan Kennedy, “The Struc-
ture of Blackstone’s Commentaries,” Buffalo Law Review, vol. 28 (1979), pp.
209–382. It is not at all clear just who actually believed (or believes) that the
substantive baselines of legal doctrine are either natural or neutral. Most of the
standard suspects, e.g., Herbert Wechsler, “Toward Neutral Principles in Con-
stitutional Law,” Harvard Law Review, vol. 73 (1959), pp. 1–35, turn out on
close reading and inspection to either have had more complex views or to have
believed nothing of the kind.
 foreword xiii

are actually the product of political and economic choices – is, once
again, claimed to be the true version of Legal Realism.15

II

Each of the foregoing understandings of Legal Realism has its

adherents. Members of and sympathizers with the Critical Legal
Studies Movement, for example, tend to promote the last men-
tioned of these interpretations,16 insisting that Legal Realism was
centrally about recognizing the non-neutrality and consequent
political choices implicit in substantive legal doctrine.17 And both
the qualitative and the quantitative empirical social scientists who
study the operation of law claim to be fostering the “new legal real-
ism,” even as their methods (and home disciplines) vary widely.18
15
See, for example, Neil Duxbury, Patterns of American Jurisprudence (Oxford:
Clarendon Press, 1995); Barbara H. Fried, The Progressive Assault on Laissez Faire:
Robert Hale and the First Law and Economics Movement (Cambridge, Massachusetts:
Harvard University Press, 1998); Morton J. Horwitz, The Transformation of Amer-
ican Law 1870-1960 (New York: Oxford University Press, 1992), pp. 169–246;
Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End
(New York: New York University Press, 1995). This substantive conception of
Realism is also apparent in the Introduction, chapter introductions, and organi-
zation (which does not get to issues of legal reasoning and decision making until
Chapter 6) of William W. Fisher III, Morton J. Horwitz, & Thomas A. Reed, eds.,
American Legal Realism New York: Oxford University Press, 1993).
16
See Horwitz, ibid.; Minda, ibid.; Guyora Binder, “Critical Legal Studies,” in
Patterson, A Companion to Philosophy of Law, op. cit. note 2, pp. 280–90. See also
Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton, New Jersey:
Princeton University Press, 1990), pp. 106–17.
17
It is worth noting, however, that one of the goals of Critical Legal Studies is/was
also to continue the more conventionally understood dimensions of the Real-
ist project, in particular the focus on law’s indeterminacy and the consequent
choices open to a judge in any particular case. See, for example, Duncan Ken-
nedy, “Freedom and Constraint in Adjudication: A Critical Phenomenology,”
Journal of Legal Education, vol. 36 (1986), pp. 518–62; Mark Tushnet, “Critical
Legal Studies: An Introduction to Its Origins and Underpinnings,” Journal of
Legal Education, vol. 36 (1986), pp. 505–17.
18
Compare Howard Erlanger et al., “Is It Time for a New Legal Realism?” Wisconsin
Law Review, vol. 2005 (2005), pp. 335–63, with Daniel A. Farber, “Toward a New
Legal Realism,” University of Chicago Law Review, vol. 68 (2001), pp. 279–393,
with Thomas J. Miles & Cass R. Sunstein, “The New Legal Realism,” University
of Chicago Law Review, vol. 75 (2008), pp. 831–51. See also Victoria E. Nourse
& Gregory C. Shaffer, “Varieties of New Legal Realism: Can a New World Order
Prompt a New Legal Theory?” Cornall Law Review, vol. 95 (2009), pp. 61–137.
xiv foreword

It would be tempting to dismiss as irrelevant these contrasting

perspectives on the true nature of Legal Realism. The disputes,
some might say, are merely contests about a label, and labels are
just that – labels with no intrinsic reality. But the temptation should
be resisted. Labels often make a difference in terms of how we per-
ceive, categorize, and organize the world, or at least some part of it,
and the battle over how we should understand Legal Realism and
the tradition that created it is in reality a battle over ownership of
the legacy of perhaps the most important strand of American legal
theory, or at least the most characteristically American strand of
American legal theory. Any attempt to frame or to reframe Legal
Realism, therefore, is best understood as an offer or attempt to
reach an understanding of a large component of the American
legal tradition.19
Of course the various perspectives on or strands of Legal Real-
ism need not be thought of as necessarily mutually exclusive. The
importance of an external empirical study of the determinants
of legal decisions, for example, is fully compatible with the view
that nonlegal factors are preeminent among those determinants;
and the view that nonlegal factors are of principal importance is
similarly compatible with the view that the equities of the particu-
lar facts of particular cases are among the most important of the
nonlegal factors. On the other hand, the view that legal rules are
indeed causally important in judicial decision making, but that the
rules that are causally important diverge from the “paper rules”
found in law books, a view most attributable to Llewellyn,20 is in
some tension with the fact-focused particularism of Hutcheson,

19
It is worthwhile noting here that the connections between American Legal
Realism and the Scandinavian Legal Realism of Axel Hägerström, A. Vilhelm
Lundstedt, Karl Olivecrona, and Alf Ross (see Gregory S. Alexander, “Compar-
ing the Two Legal Realisms – American and Scandinavian,” American Journal of
Comparative Law, vol. 50 [2002], pp. 131–74 [2002]) are, at best, attenuated.
Although, as Alexander argues, the Scandinavian Realists shared some political
goals with many of the American Realists, the fundamental core of Scandinavian
Realism was skepticism about the objectivity (or even the point) of morality, a
view drawn from the logical positivism that flourished during the period when
many of the Scandinavian Realists were writing. Some American Realists may
have been similarly skeptical of the objectivity of morality, but the American
Realist enterprise tended to be far removed from addressing such issues.
20
See Llewellyn, op. cit. note 10; Karl Llewellyn, “A Realistic Jurisprudence: The
Next Step,” Columbia Law Review, vol. 30 (1930), pp. 431–65.
 foreword xv

Frank, and others. Even putting such tensions aside, however, mat-
ters of emphasis are important. Consequently, the question of the
true or central nature of Legal Realism persists. It was a question
that very much concerned Llewellyn in “Some Realism about Real-
ism,”21 and it is a question the importance of which should not be
easily dismissed as simply being about mere labels.
Asking about the real nature of something, however, is fraught
with perils. Famously, J. L. Austin treated “real” as his primary exam-
ple of what he (unfortunately) called a “trouser-word,” in the sense
of there being some other word, the negation, that “wore the trou-
sers” by virtue of playing the leading role.22 Thus, we do not really
know what it is for something to be real unless we have an under-
standing of the particular form of unreality that the designation of
something as real is intended to reject. The statement that a coat
is made of real fur, for example, is an assertion that the coat is not
made out of imitation fur, but it is not an assertion that the fur is not
toy fur, yet in other contexts real means not a toy, as when in some
contexts we talk about a real car when we mean precisely to say that
it is not a toy car.
In the context of law, therefore, it is interesting to wonder just
what form of unreality the various claims of Legal Realism to be real
are attempting to deny. There are numerous candidates for such
claimed unrealities, and each of the characterizations of Realism
described here is premised on a belief that there is a certain kind of
unreality that would be usefully disabused by accepting the Realist
challenge. Thus, for some the relevant unreality is the belief that
legal decision making is rule-intensive rather than fact-intensive,23
for others it is the belief that judges do not decide on an outcome
until after consulting the relevant legal rules,24 for still others it is
the belief that judicial opinions are an accurate description of the

21
Op. cit. note 9. It is important to note, however, that Llewellyn, both in this article
and elsewhere, had a decidedly non-essentialist view about the nature of Legal
Realism, believing that it was more a state of mind than a program or a move-
ment and believing that multiple and partially divergent perspectives could all
properly be characterized as Realist.
22
J. L. Austin, Sense and Sensibilia (G. J. Warnock, ed., Oxford: Oxford University
Press, 1962), pp. 15–19, 63–77.
23
See especially Leiter, Naturalizing Jurisprudence, op. cit. note 2, pp. 73–80. See
also Frederick Schauer, “Introduction,” in Karl N. Llewellyn, The Theory of Rules,
op. cit. note 10, pp. 1–28.
24
See Hutcheson, op. cit. note 3; Frank, op. cit. note 4.
xvi foreword

thinking and reasoning processes of judges,25 and there is also the

form of unreality represented by the belief that the best way to
understand law is by engaging in the largely nonempirical analysis
of reported appellate opinions.26 And so on. And thus when Hol-
mes observed, famously, that “The life of law has not been logic, it
has been experience,”27 he not only established himself as a Realist
precursor in seeking to debunk a long-held belief about the nature
of common law reasoning, but emphasized that we understand
legal perspectives substantially by what they seek to reject. Had
there not been a tradition of treating common law development as
a process of logical discovery, Holmes’s quip would have made no

25
Even outside of the Realist canon and explicit discussions about Realism, there is
a normative debate about whether judges are or should be candid in their opin-
ions. Compare David Shapiro, “In Defense of Judicial Candor,” Harvard Law
Review, vol. 100 (1987), pp. 731–50, with Scott C. Idleman, “A Prudential The-
ory of Judicial Candor,” Texas Law Review, vol. 73 (1995), pp. 1307–1417. And
Richard A. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification
(Stanford, California: Stanford University Press, 1961), distinguishes the role of
law in causing legal decisions – the logic of decision – from its role in justifying
them – the logic of justification.
26
It is often said that “we are all Realists now,” Gary Peller, “The Metaphysics
of American Law,” California Law Review, vol. 73 (1985), pp. 1151–1290, at
p. 1151; Joseph William Singer, “Legal Realism Now,” California Law Review, vol.
76 (1988), pp. 465–544, at p. 467, but it is far from clear that that is actually
so. Obviously the truth of the claim that we are now all Realists depends on
the conception of Realism that the claimant holds, but there are at least some
indications that the main lines of the Realist critique remain resisted. For one
example, consider the torts casebook developed by Leon Green, a central Real-
ist figure. Green believed that the determinants of outcomes in torts cases were
not formal doctrines such as foreseeability and proximate cause and reasonable
care, but rather the factual situations in which claims arose. As a result, he orga-
nized his casebook not around the traditional legal categories of tort law, but
instead around the factual categories of the world, such as railways and animals.
Leon Green, The Judicial Process in Torts Cases (St. Paul, Minnesota: West Publish-
ing Co., 1931). Yet it is noteworthy that no modern torts book takes a similar
approach. Is this rejection of Green’s approach based on the view that Green
was empirically mistaken, and that the formal categories of tort law have more
to do with outcomes in tort cases than the factual situations in which tort claims
arise, or is it perhaps because there is more resistance to the core claims of Legal
Realism than the common incantation of “we are all Realists now” appears to
imagine? On the latter possibility, albeit with a somewhat different conception of
Realism in mind, see Hanoch Dagan, “The Realist Conception of Law,” University
of Toronto Law Journal, vol. 57 (2007), pp. 607–60.
27
Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown, 1881), p. 1.
 foreword xvii

sense. It gets its bite precisely from the existence of what it seeks
to rebut. And so too with much of Legal Realism, whose enduring
importance stems largely from the cluster of traditional views about
legal thought and judicial decision making that it has sought, from
the beginning, to challenge.

III

But if there are competing conceptions of Legal Realism, and

thus competing conceptions of just which accepted belief about
the nature of law and legal decision making is in need of debunk-
ing, how are we to resolve the controversy? One possibility is that
there is no need to resolve it at all. If Legal Realism is more a state
of mind than a concrete position, as Llewellyn long insisted,28
then it could well be that the various positions associated with
Realism are connected by nothing more than a family resem-
blance, a cluster of related positions sharing no common features
among all. And it is also possible that the claims of Legal Realism
are appropriately modified over time in order to recognize the
needs and issues of the present rather than the issues that happen
to have occupied a certain group of people at a particular time.
Just as history, even the history of the same events, is (or must be)
rewritten for each generation, maybe so too is the history, the
meaning, the legacy, and the importance of Legal Realism differ-
ent now than it was in the 1980s, and different in the 1980s from
what it was in the 1950s, and different in the 1950s from what it
was in the 1930s.
Yet, however we seek to define the task of understanding Real-
ism, we cannot, or at least should not, avoid an inquiry that is
at least in part historical. There existed real Realists, as it were.
Llewellyn, Frank, Oliphant, and many others were real people
who had real thoughts and who write real books and real articles.
And while there might be genuine debates about whether certain
figures were or were not Legal Realists – Oliver Wendell Holmes,
John Chipman Gray, Benjamin Cardozo, Robert Hale, and others
are often the subject of these debates – these are debates at the
periphery, debates about figures whose entitlement to the Real-
ist label is open to legitimate disagreement. But no one seriously
28
Especially in “Some Realism about Realism,” op. cit. note 12.
xviii foreword

doubts that Jerome Frank, Karl Llewellyn, Felix Cohen, Herman

Oliphant, Hessel Yntema, William Douglas, Wesley Sturges, Thur-
man Arnold, Max Radin, Leon Green, and Underhill Moore,
among others, existed at the historical core of American Legal
Realism from the 1920s to the 1940s, and an understanding of
Legal Realism that does not recognize the centrality of at least
most of these major figures is more usefully understood as an
attempt to hijack the Legal Realist legacy than to understand or
continue it.
Once we acknowledge the importance of history in under-
standing Legal Realism, and once we acknowledge as well the
central position of a small group of principal players in defining
what Realism was and remains, we are led to the importance of
William Twining’s magisterial Karl Llewellyn and the Realist Move-
ment. It would be tempting to describe the book as a classic, but
that description understates its importance. Although others
have written about Karl Llewellyn,29 and although the work of
numerous scholars has illuminated Llewellyn’s special role in the
development of commercial law as we know it,30 nothing even
approaches Twining’s book in its comprehensiveness. If nothing
else, it is the definitive intellectual biography of an enduring fig-
ure in American legal theory, and the most penetrating analysis
of the ideas of one of the small number of people who, from the

29
See N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American
Jurisprudence (Chicago: University of Chicago Press, 1997); Wilfrid E. Rumble,
American Legal Realism: Skepticism, Reform, and the Judicial Process (Ithaca, New
York: Cornell University Press, 1968); Brian Leiter, “Karl Nickerson Llewellyn
(1893–1962),” in International Encyclopedia of the Social and Behavioral Sciences,
Karl Ulrich Meyer, ed. (New York: Elsevier, 2001), pp. 8999–9001.
30
See Douglas G. Baird, “Llewellyn’s Heirs,” Louisiana Law Review, vol. 62 (2002),
pp. 1287–97; Ingrid Michelsen Hillinger, “The Article 2 Merchant Rules: Karl
Llewellyn’s Attempt to Achieve The Good, The True, The Beautiful in Commer-
cial Law,” Georgetown Law Journal, vol. 73 (1985), pp. 1141–84; Allen R. Kamp,
“Karl Llewellyn, Legal Realism, and the UCC in Context,” Albany Law Review, vol.
59 (1995), pp. 325–97; Gregory E. Maggs, “Karl Llewellyn’s Fading Imprint on
the Jurisprudence of the Uniform Commercial Code,” University of Colorado Law
Review, vol. 71 (2000), pp. 541–88; James Whitman, “Commercial Law and the
American Volk: A Note on Llewellyn’s German Sources for the UCC,” Yale Law
Journal, vol. 97 (1987), pp. 156–75; Zipporah Batshaw Wiseman, “The Limits of
Vision: Karl Llewellyn and the Merchant Rules,” Harvard Law Review, vol. 100
(1987), pp. 465–545.
 foreword xix

1920s until the 1960s, were at the pinnacle of American legal

thought.31
But the volume’s title is accurate. This is a book not only about
Llewellyn, but also, and perhaps more importantly, about American
Legal Realism. Implicit in the title, of course, is Twining’s view that
one cannot understand Realism without understanding Llewellyn’s
thought,32 and that Llewellyn was arguably the most important of the
Realists. Others – Herman Oliphant,33 Underhill Moore,34 and Joseph
Hutcheson,35 as well as the more complex Holmes and Gray36 – may
have been earlier. And others – Jerome Frank,37 Thurman Arnold,38

31
I will not list those who I believe are the others, for fear of treating and ranking
legal theorists and thinkers as if they were movie actors or centerfielders.
32
For a similar view about the importance of biography to understanding Realism,
see Roy Kreitner, “Biographing Realist Jurisprudence,” Law & Social Inquiry, vol.
35 (2010), pp. 765–88.
33
Oliphant’s “A Return to Stare Decisis,” American Bar Association Journal, vol. 14
(1928), pp. 71–6, as based on a speech given in 1927, and Oliphant had been
active in Realist-sounding curricular reform at the Columbia Law School from
the early 1920s. Kalman, op. cit. note 5, pp. 68–75.
34
Moore’s empirical Realism was evident as early as his 1923 “The Rational Basis of
Legal Institutions,” Columbia Law Review, vol. 23 (1923), pp. 609–17, and he too
was involved in the curricular upheavals at the Columbia Law School that started
even earlier. Schlegel, op. cit. note 8.
35
Hutcheson’s most memorable writing was in 1929, Hutcheson, op. cit. note 3,
and the roots of his thinking and writing go back somewhat earlier. See Charles
L. Zelden, “The Judge Intuitive: The Life and Judicial Philosophy of Judge
Joseph C. Hutcheson, Jr.,” South Texas Law Review, vol. 39 (1998), pp. 905–17.
36
More complex in the sense that they are better thought of as precursors to
Realism than Realists themselves. See Frederick Schauer, Thinking Like a Lawyer:
A New Introduction to Legal Reasoning (Cambridge, Massachusetts: Harvard
University Press, 2009), pp. 124-–8.
37
Especially in Law and the Modern Mind, op. cit. note 4, but also in, for example,
Jerome Frank, If Men Were Angels (New York: Harper & Brothers, 1942), and
Jerome Frank, “Are Judges Human? Part One: The Effect on Legal Thinking of
the Assumption That Judges Behave like Human Beings,” University of Pennsyl-
vania Law Review, vol. 80 (1931), pp. 17–53. It is common to dismiss Frank as a
comparatively unimportant figure in Realist thought, partly because of the infat-
uation with the naïve and crude version of psychoanalytic theory represented
in Law and the Modern Mind and other early works, and partly because of his
combative and flamboyant language. See, for example, Leiter, Naturalizing Juris-
prudence, op. cit. note 2, pp. 17, 44–5. But Frank’s views about the importance
of particular facts in particular cases and about the order of decision and justi-
fication are important aspects of Realist thought, to which Frank was one of the
initial contributors. See Charles Barzun, “Jerome Frank and the Modern Mind,”
Buffalo Law Review, vol. 58 (2010), pp. 1127–58.
xx foreword

and Fred Rodell39 – may have produced more shock value by the
boldness of their arguments, the extravagance of their prose, and
the nature of their personalities. But Llewellyn (who had no need to
yield to anyone with respect to colorful prose or noteworthy personal
characteristics) was there at something close to the beginning, and –
by virtue of his positions at Yale, and Columbia, and Chicago; of his
anthropological work;40 and of his role in the creation of modern
commercial law41 – was the pervasive presence of Legal Realism for
at least thirty years. To understand Llewellyn is simply to understand
Realism, and to understand Realism is to understand Llewellyn,
Twining insists, and in that he is not far wrong.
Karl Llewellyn and the Realist Movement was thus when it was first
written the right book on the right topic to understand Legal
Realism, and it remains so forty years on. The book is compre-
hensive, meticulously researched, engagingly presented, and,
perhaps most important, jurisprudentially sophisticated. Twin-
ing started his academic career with Hart, but very soon there-
after became immersed in Llewellyn and Realism. And Twining
has continued as a substantial figure in legal theory in his own
right. His work on the theory and history of evidence and proof
remains definitive,42 he has made major contributions to thinking
38
See, for example, Thurman W. Arnold, “The Jurisprudence of Edward
S. Robinson,” Yale Law Journal, vol. 41 (1932), pp. 1282–9. See also Spencer
Weber Waller, Thurman Arnold: A Biography (New York: New York University
Press, 2005); Neil Duxbury, “Some Radicalism about Realism? Thurman Arnold
and the Politics of Modern Jurisprudence,” Oxford Journal of Legal Studies, vol. 10
(1990), pp. 11–41, and the description in Kalman, Legal Realism at Yale, op. cit.
note 5, at pp. 136–41.
39
See Fred Rodell, Woe Unto You, Lawyers! New York: Reynal & Hitchcock, 1935).
And see the description of Rodell in Charles Alan Wright, “Goodbye to Fred
Rodell,” Yale Law Journal, vol. 89 (1980), pp. 1456–7.
40
Karl Llewellyn & E. Adamson Hoebel, The Cheyenne Way (Norman, Oklahoma:
University of Oklahoma Press, 1941). Various other works with an anthropolog-
ical orientation, most published in the 1940s and 1950s, are listed in Twining’s
definitive bibliography of Llewellyn’s published and unpublished works. William
Twining, The Karl Llewellyn Papers (Chicago: University of Chicago Law School,
1968), pp. 47–78. See also Ajay K. Mehrotra, “Law and the ‘Other’: Karl N.
Llewellyn, Cultural Anthropology, and the Legacy of The Cheyenne Way,” Law &
Social Inquiry, vol. 26 (2001), pp. 741–72.
41
See references op. cit. note 29.
42
See especially William Twining, Rethinking Evidence: Exploratory Essays (Cam-
bridge: Cambridge University Press, 2d ed., 2006); William Twining, Theories of
Evidence: Bentham and Wigmore (London: Weidenfeld & Nicolson, 1985).
 foreword xxi
43
about legal reasoning, and in much of his recent work he has
attempted, with much success, to try to understand legality in a
world of highly diverse cultures and legal systems.44 As the after-
word to this edition makes stunningly clear, Twining thinks and
writes about the nature of law in a way that situates him at an angle
from the mainstream of contemporary analytic jurisprudence,
but it would be a mistake to confuse his iconoclasm with a lack of
sophistication or a lack of knowledge. When Karl Llewellyn and the
Realist Movement was first written in 1971, Twining was very much
a part of the world of jurisprudence, and it is a world with which
he remains connected and one he understands well. And thus
one of the things that sets Karl Llewellyn and the Realist Movement
apart from most of the other books and articles about Llewellyn
and about Legal Realism is that the meticulous and exhaustively
documented historical account that Twining provides is com-
bined with an understanding of legal theory that is evident from
Twining’s other work, but which in this book frames and informs
his analysis of Legal Realism in unique and important ways.

Twining’s Llewellyn and Twining’s Realism are both very much

informed by a particular point of view. Thus, although there are
those – this author among them – who are inclined to see a substan-
tial shift in Llewellyn’s thought over the years, and who are inclined
to take seriously what some think of as the more extreme claims
of Legal Realism, Twining sees mostly consistency in Llewellyn’s
thought throughout the years, and he is at pains to emphasize that
many of the seemingly more guarded conclusions of Llewellyn’s
later work were present even from the beginning.45 For Twining,

43
See William Twining & David Miers, How to Do Things with Rules (London: But-
terworths, 4th ed., 1999).
44
William Twining, General Jurisprudence: Understanding Law from a Global Perspective
(Cambridge: Cambridge University Press, 2009).
45
Thus, there are themes in Llewellyn’s later work that are foreshadowed, and in
a more understated way than in The Bramble Bush, in The Case Law System in Amer-
ica (Chicago: University of Chicago Press, Paul Gewirtz, ed., Michael Ansaldi,
trans., 1989), originally written in German as Präjudizienrecht und Rechtssprechung
in Amerika, published in Germany in 1933, and based on lectures that Llewellyn
delivered in Leipzig in 1928.
xxii foreword

Llewellyn was never as extreme as the opening pages of The Bramble

Bush suggest, and never as narrowly focused on appellate adjudica-
tion as some have thought. And thus for Twining the full compass
of Llewellyn’s thought and contribution were there to be found by
the careful reader almost from the very beginning. Similarly, there-
fore, a full appreciation of Realism is, for Twining, an appreciation
of Realism’s focus on legal culture as well as appellate adjudication,
and an empirical and sensitive understanding of law’s determina-
cies as well as its indeterminacies.
Twining’s account thus takes a strong position, and that is part
of its value, both for those who agree and those who disagree. For
those who disagree, at least in part, Twining’s accurate excavation
of the origins of Llewellyn’s later thought in Llewellyn’s earlier
writing may slight important differences of emphasis. Yes, there
are connections between the Llewellyn of The Bramble Bush and
“Some Realism About Realism” on one hand and the Llewellyn of
the Uniform Commercial Code and The Common Law Tradition46 on
the other, but there may also be discontinuities. And this should
not be surprising. Over the course of a long and complex career,
Llewellyn not only grew older (and maybe wiser), but become more
immersed in the world of practice and the world of law reform, and
became more aware of the role of law in other cultures. It would be
surprising if such a wealth of experiences over thirty years did not
change the thought of someone with as curious and fertile a mind
as Llewellyn, and consequently it may tell only part of the story to
emphasize the undoubted continuities over time without also not-
ing the numerous changes over the span of a long and productive
career in different institutions in different places and with at least
somewhat different roles and responsibilities.
Perhaps more significant, it may be important to recognize
that Llewellyn at his most extreme may have been more correct
than Twining and many others have recognized. Rules may not be
“pretty playthings,” as Llewellyn, to his regret, noted in the open-
ing pages of The Bramble Bush, but the extent of their causal con-
tribution to legal outcomes may still be exaggerated by those who
make their living thinking and teaching about legal rules and legal
doctrine. Indeed, although Llewellyn was insistent throughout his

46
Karl N. Llewellyn, The Common Law Tradition – Deciding Appeals (Boston: Little,
Brown, 1960).
 foreword xxiii

life that real legal rules diverged in important ways from the literal
meaning of the “paper rules” that one could find in statute books
and that are summarized in black letters in hornbooks and case-
books, he did subscribe to the view that the real rules were causally
important in determining legal outcomes, and that various non-
rule factors exercised a stabilizing and moderating influence on
the operation and development of law.47 But perhaps Llewellyn,
whose admiration for the culture of real lawyers and real judges
was considerable, and who respected the collective wisdom of the
legal establishment (he called them “the lawmen”), overestimated,
whether always or eventually, the determinacy of even law broadly
conceived, and underestimated the role that ephemeral personal,
psychological, political, and economic factors played in causing
legal results. Perhaps, therefore, the less qualified utterances of the
earlier Llewellyn, along with the even less qualified utterances of
Jerome Frank, for example, and others, still have more to teach us
then Twining’s Llewellyn, or even anyone else’s Llewellyn, or pos-
sibly even the later Llewellyn, may have imagined.

VI

That Twining’s picture offers falsifiable hypotheses and strong but

debatable conclusions is, of course, an unqualified virtue and not a
vice. Even as originally written, this is a book that not only provides
a wealth of historical detail and interstitial insight, but also stakes
out a position about the meaning of Legal Realism and about the
nature of Llewellyn’s thought that no legal theorist or historian of
American legal thought can afford to ignore. But now, with the
addition to Twining’s genuinely new and lengthy afterword that
concludes this volume, the importance of the book is even greater.
The afterword offers a series of personal insights into the concep-
tion and writing of the original book that will now become an
important part of the historical record about Realism and about
Llewellyn. But the afterword also situates Llewellyn and Realism
within the modern jurisprudential terrain, a terrain just beginning
to develop in the late 1960s and early 1970s. This is a terrain that
tends, by and large, to ignore Llewellyn and to ignore Legal Real-
ism, with most of its inhabitants remaining largely in the thrall of
47
See especially, Llewellyn, The Theory of Rules, op. cit. note 10.
xxiv foreword

H. L. A. Hart’s misreading of Llewellyn and misunderstanding of

Legal Realism in The Concept of Law.48 Moreover, it is a terrain, as
Twining emphatically believes, that has achieved a degree of phil-
osophical sophistication at the expense of the empirical Realism
that was central to Llewellyn’s thought, and, more important, at
the expense of understanding the phenomenon of law as it exists
in the world we know.
As with his interpretations of Llewellyn and Realism, Twining’s
concerns about the directions of modern legal theory, concerns
that are very much in evidence in the afterword, will attract objec-
tions as well as agreement. But this too is to be applauded and not
dismissed. In offering in the afterword new and important histori-
cal data along with crisp and challengeable claims about the nature
of legal theory as it is practiced today, Twining has combined the
historical with the jurisprudential in a way that is both faithful
to the original book, and that makes the book and its new after-
word required reading for all those who wish to understand Karl
Llewellyn, Legal Realism, American legal thought, and the nature
of law itself.

48
In Chapter Seven of The Concept of Law (Oxford: Clarendon Press, 2d ed.,
Penelope A. Bulloch & Joseph Raz, eds., 1994), Hart not only ignores Llewellyn’s
qualifications of the early passages of The Bramble Bush, qualifications that Hart
himself had acknowledged several years earlier in H. L. A. Hart, “Positivism
and the Separation of Law and Morals,” Harvard Law Review, vol. 71 (1958),
pp. 593–629, at p. 615 note 40, and thus not only too easily brands Llewellyn as
a “rule skeptic,” but makes several more substantive blunders. He characterizes
Realism as being concerned only with the external prediction of judicial deci-
sions, although Llewellyn and others had long recognized the internal as well as
external points of view. And he accuses the Realists of conflating the disputed
edges of legal rules with all of law, although once again Llewellyn and others had
explicitly insisted that their claims about legal indeterminacy were limited to lit-
igated or appellate cases, and that litigated cases bear the same relationship to
the underlying pool of disputes “as does homicidal mania or sleeping sickness,
to our normal life.” Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study
(New York: Columbia Law School, 1930), p. 58. A valuable modern edition of
The Bramble Bush is Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study
(New York: Oxford University Press, Steven Sheppard, ed., 2009).
PREFACE

At first sight it may seem that few jurists can stake as strong a
claim to singularity as Karl Llewellyn: the only American ever to
have been awarded the Iron Cross; the most fertile and inventive
legal scholar of his generation; legal theory's most colourful
personality since Jeremy Bentham; the only common lawyer
known to have collaborated successfully with an anthropologist
on a major work; a rare example of a law-teacher poet; the chief
architect of the most ambitious common law code of recent
times; the most romantic of legal realists, the most down-to-earth
of legal theorists; the most ardently evangelical of legal sceptics;
the most unmethodical of methodologists; and least controvertible
of claims, the possessor of one of the most exotic prose styles in
all legal literature.
Yet for all his idiosyncrasies, Llewellyn was to an extraordinary
degree representative of the best of his generation of American law
teachers. This is partly a function of the breadth of his interests.
In studying him we inevitably have to learn something of subjects
as varied as commercial law, civil liberties, appellate judging,
advocacy, legislative drafting, legal education, the sociology of the
legal profession, the philosophy of pragmatism, semantics, func-
tional anthropology, the Sacco-Vanzetti Case, empirical research
into legal processes, law reform, and, of course, the American
realist movement. However, Llewellyn mirrored his environment
for reasons that lie deeper than the fact that he had a broad
perspective and a variety of interests. He could only have been
an American; he once summed up his viewpoint as being
'dominantly American, northern, urban, bourgeois, Protestant
gentile, academic, liberal, "private" rather than "public" law,
"office" rather than "litigation"- and, of course, contemporary'.
This is a fair statement, but it says nothing of what was perhaps
his most important characteristic. This was an extraordinary
capacity for empathy, a Protean quality, which enabled him to
xxvi pr efac e

project himself imaginatively into the position of other people and

to assimilate and work with the atmosphere and values of his
immediate milieu, whether it was the German army, the American
bar, the world of commerce, or a New Mexican Pueblo. This
quality is to be found both in his ability to see a wide variety
of processes from the point of view of the participants, and in his
sympathetic, but not uncritical, identification with the values of
the common law, of the legal profession, of the American law
school and of many other institutions and groups. Because of it
he was sometimes criticized for being fickle or unprincipled and,
perhaps with more justice, for being romantically conservative.
Nevertheless it was essentially a source of strength, the basis
for profound insights into a variety of institutions and processes
and for the unexpectedly representative quality of his apparently
bizarre writings. This is perhaps why, despite his disclaimers,
he can be fairly treated as speaking not only for legal realism
but also, in such works as the Bramble Bush and The Common
Law Tradition, for some of the more fundamental values of the
common law, and of the American law school during what may
come to be viewed as its heyday.
Llewellyn's works comprise nearly 250 published items and a
substantial number of unpublished manuscripts. Although there
is much overlap and repetition in these writings, no single one
gives a comprehensive picture of his thought. The work which
most nearly approximates to this is a hitherto unpublished set of
materials for a course on jurisprudence. He had planned to use
these materials as the basis for a series of lectures in Germany
in 1962-3, but he died before he was able to undertake the
project. Even if he had lived to complete it, the available
evidence suggests that it would probably not have adequately
filled the need for a systematic exposition of his ideas. Indeed,
the reader must not expect to find in the present work an account
of a complete intellectual system, for Llewellyn did not have one.
Although by mid-career he had developed a rough framework
of ideas, approximating to a general theory, many of his most
important contributions were more specific than general. In
jurisprudence, too, the judgment of history may be that he was,
for the most part, more representative than original.
My principal aim in writing this book has been to make
Llewellyn's work more accessible by giving a relatively coherent
interpretation of his thought and of its development, especially
 p r e fac e xxvii
in the sphere of jurisprudence. In doing this I have tried to catch
something of the flavour of his personality and of his environ-
ment, not only because these are interesting in themselves, but
also because, I believe, jurists as well as law are best under-
stood in context. A secondary aim has been to provide the basis
for a reinterpretation of American legal realism. The subject
is too large and too amorphous to be dealt with fully in a book
about any single realist, but Llewellyn's formative period
happened to coincide in time and place with a crucial phase in
the history of realism. Some account of these matters would have
been necessary in any case and I have taken the opportunity
to re-tell the story of the rise of the realist movement from 1870
to 1931. If, as I believe, realism must be treated historically before
it can be satisfactorily dealt with analytically, this account may
help to pave the way for a more detailed history of an interesting
phenomenon. The final chapter contains my personal evaluation
of the contemporary significance of realism.
It has been said that Llewellyn was too volatile a subject to
be capable of a definitive study. I accept this view. Although every
effort has been made to give an accurate and balanced account
of his thought, selection and an element of liberal interpretation
have been inevitable. Llewellyn's writings are very extensive,
variable in quality and often rather loosely expressed. If his work
is to survive, the wheat needs to be resolutely winnowed from
the chaff. I have not hesitated to express my own judgments, but,
while not trying to gloss over his weaknesses, I have tried to act
on his own working principle that in reading or discussing a
jurist or any other type of thinker it is more rewarding to concen-
trate on his strengths than to dwell on his faults, and that it
is usually more important to try to understand than to criticize.
Since this work cannot claim to be without bias, it may help
to say a little about its perspective. As a former pupil of Llewellyn,
very much in his intellectual debt, as the person who put his
papers in order, and as a friend of the family I can claim the
intimacy, and the prejudice, of an insider. As an Englishman
observing the American scene, as a jurist who was first nurtured
on the analytical work of Hart and Austin, and who has subse-
quently been attracted back to Bentham and Mill, and as a
teacher who has spent most of his working life to date in Africa
and Ireland, I have most of the disadvantages and few of the
advantages of an outsider. As one who knows little commercial
xxviii pr eface
law and almost no German, I have been unable to do justice to
these phases of Llewellyn's work. Finally, as one who is fascinated
by jurisprudence, but frustrated by much of its literature, I am
particularly concerned to try to break away from some of the
worst aspects of its literary tradition and to try to bridge the
gap between the complementary and unnecessarily polemical
worlds of the English analytical and American sociological
approaches. If this work can make a small contribution to this
end, it will have served its purpose.

Belfast, 197 I W.L.T.

Postscript
Twenty years after the first publication of The Bramble Bush, Karl
Llewellyn decided to abandon his attempts to make substantial re-
visions to the text because 'the young fellow who wrote those lectures
just' isn't here any more' (below, p. 151). It is over twenty years
since I began work on Karl Llewellyn and the Realist Movement and
nearly fourteen since the manuscript was delivered to the publishers.
I am naturally delighted that Weidenfeld and Nicolson has decided
to re-issue it and that it will simultaneously be produced for the first
time in the United States by the publishers of The Cheyenne Way. No
doubt to the relief of both, I have decided to follow Llewellyn's
example and refrain from revising the text. I have, however, taken
the opportunity presented by an invitation to deliver the John
Dewey Lecture at New York University Law School in October
1984 to take a fresh look at Legal Realism and to comment on some
of the more interesting recent research and writing on the subject.
The published version of this lecture will indicate some changes in
perspective and emphasis, but I hope that it will serve to scotch
suggestions of premature senility or radical changes of mind. It also
makes it possible to keep this postscript quite brief.
In the period since 1970 there have been significant developments
both in relevant specialized work and in the general intellectual
climates of academic law in the United States and the United King-
dom. These include some publications that are directly relevant to
matters dealt with in this book. Three items can be added to Llew-
ellyn's bibliography: (i) Recht, Rechtsleben und Gesselschaft (ed. M.
Rehbinder) was published in Berlin in 1977 by Duncker and Hum-
blot. This was the German language manuscript on 'Law, the Life
 p o st sc r i p t xxix

of the Law and Society', written in 1932 in connection with his visit
to Leipzig (below, p. 107). It is interesting as a statement of Llew-
ellyn's early sociological views and, in particular, of his debt to
Weber and his differences with Ehrlich (see further G. Casper in 24
U. Chi. L.S. Record 27 (1978)). (ii) In 1981 I came across a hitherto
unlisted publication by Llewellyn: 'Law in Society', in Horace Tay-
lor (ed.), Contemporary Problems in the United States (1934-5 edn; Har-
court, Brace, New York), vol. 2, pp. I?-25. (iii) In I98I, Soia
Mentschikoff and Irwin P. Stotzky published The Theory and Crtift of
American Law (Matthew Bender, New York), which is based on the
materials for the course on 'Elements of Law' at Chicago (see below,
p. 15I, where I probably understated its significance. See further
Gerwin and Shupack in 33 J. Legal Education 64 (1983).) Finally,
two of Llewellyn's works have been published in paperback editions:
The Bramble Bush (Oceana, 7th printing I981) and The Cheyenne Wf9>
(Oklahoma U.P., 1983).
It would not be appropriate here to attempt to provide a com-
prehensive bibliography about Realism and the contributions of in-
dividual Realists published since I 97 1. It is, however, worth select-
ing a few works for brief comment. Outstanding is the as yet
unfinished historical research of J.H. Schlegel on Realism and Em-
pirical Social Science. This has already added significantly to our
knowledge and understanding of the Yale Realists (see especially 28
Buffalo L. Rev. 459 (I979) and 29 Buffalo L. Rev. I95 (I98o)). Robert
S. Summers' fine book Instrumentalism and American Ltgal Theory
(I 982) is a bold attempt to reconstruct a distinctive American
'general theory about law and its use' from the writings of Holmes,
Dewey, Pound and some Realists, including Llewellyn. I have re-
servations about aspects of Summers' enterprise, but our differences
are greater than our disagreements. Reference should also be made
to Alan Hunt, The Sociological Movement in Law (1978), G. Edward
White, The American Judicial Tradition ( I976), Bruce
Ackerman, Reconstructing American Law (I984), and the useful series
of articles by Simon Verdun-Jones in 7 Sydney L. Rev. r8o ( 1974)
(Frank); 1 Dalhousie L. Jo. 441 (I974) (Llewellyn); 3 id. 470 (1976)
(Arnold); 5 id. 3 (I979) (Cook, Oliphant, Yntema). See also the
festschrijft for Soia Mentschikoff Llewellyn in 37 U. of Miami L.
Rev. (I984). One pleasing development has been the growth in the
number of scholarly biographies and critical studies of American
legal thinkers. At a more general level the burgeoning interest in
both legal and intellectual history has greatly added to our under-
xxx postsc ri p t
standing of the political, intellectual and institutional contexts in
which Realism developed.
During the period that this book was being written, intellectual
biography seemed to be considered an eccentric indulgence for an
academic lawyer; jurisprudence in the United States was muted and
in England, at least, Realism was thought to be discredited; both
Marxism and Economic Analysis of Law had very few adherents
among legal scholars in either country; such terms as critical legal
studies, socio-legal, contextual, structuralism and phenomenology
have all gained currency in the law-school world since then. The
same period has seen major contributions to legal theory, broadly
conceived, from Dworkin, Finnis, Fuller, Hart, MacCormick, Nozick,
Rawls, Raz, Summers, Unger and many others; the history and
theory of contracts has had a particularly rich period; legal history
has blossomed and diversified; and there have been interesting de-
velopments in legal anthropology. There has also been the welcome
revival of a contextual approach to the intellectual history of polit-
ical thought by Skinner and others. This has strong affinities to the
approach adopted in the present work.
The list could be extended almost indefinitely. The significance of
these intellectual developments is that if work on this book had
begun fifteen years later, it would have taken place in a substantially
different intellectual climate. This would have inevitably affected
one's concerns, perspectives and judgments of significance. Never-
theless, it is unlikely that it would have resulted in a major change
of emphasis on the variety of Llewellyn's contributions, to say no-
thing of those of other Realists, or on the extent to which their
concerns were directed to issues affecting the practice of legal edu-
cation and scholarship far more than to more abstract questions of
legal philosophy. Apart from a few minor corrections and additions,
noted in the Dewey Lecture, I am prepared to stand by what I
wrote. Indeed, my inclination is to be more emphatic about a num-
ber of themes: for example, the value of studying jurists and parti-
cular texts in context; the dangers of generalizing about Realism;
and, above all, the perennial relevance of realist ideas to continuing
attempts to develop coherent and systematic alternatives to
approaches that treat "the discipline of law as co-existensive with
legal dogmatics. I remain committed to the view that the main, but
not the only, respect in which the Realist enterprises are of contin-
uing significance is as a brave, but only partially successful, attempt
to broaden the study oflaw from within.
London,January 1985 W.L.T.
ACKNOWLEDGEMENTS

Work started on this book in 1963-4. It is impossible to mention

all those who have contributed to it during the ensuing years
through discussion, comment and advice. I hope that they will
accept this general acknowledgement of my debts and that I shall
be forgiven by anyone who is left out of the list that follows.
Among those to whom I am particularly indebted are Bruce
Ackerman, Peter Fitzpatrick, Arthur Leff, Robert Stevens and
Geoffrey Wilson, all of whom read through early versions of the
manuscript and made many valuable comments. I have profited
from suggestions from Gerhard Casper, Ulrich Drobnig, E. Adamson
Hoebel, Clarence Morris, Claire Palley, Rudolph Schlesinger, Robert
Summers and Adrian Taylor, to mention but a few. I have also
learned much from interviews and discussions with many individuals
and especially with students in Dar es Salaam, Yale, Belfast and the
Universities of Chicago and Pennsylvania. I wish to thank Sandra
Maxwell, Mary Egan and others who typed and re-typed various
drafts; all those at Weidenfeld and Nicolson who helped with the
production of the book; Gertrude Mittelman who compiled the
index; and Alison Harris who helped with the proofs. I am grateful,
too, to the Ford Foundation, the Rockefeller Foundation and the
Queen's University of Belfast, for grants which enabled me to pur-
sue my research and to the Law Libraries and the Library staff of
the University of Chicago, Columbia University, Yale University
and the Queen's University of Belfast for unstinting help on
many occasions. Above all my thanks are due to two individuals:
Soia Mentschikoff Llewellyn put at my disposal the Llewellyn
Papers and her own unrivalled knowledge of her husband and
his work; her support, encouragement and patience sustained me
throughout the project, yet at all times she left me entirely free
to exercise my own judgment. Finally, special thanks are due to
xxxii ack now l e dge me nts

my wife who acted as research assistant, editor and cnttc, and

who, above all, by her patience and encouragement, helped to
sustain rny faith in the worthwhileness of the enterprise.

ABBREVIATIONS USED IN THE TEXT

AALS Association of American Law Schools
ABA American Bar Association
ACLU American Civil Liberties Union
ALI American Law Institute
KLP The Karl Llewellyn Papers (see Bibliographical note)
NAACP National Association for the Advancement of Colored
People
NCC National Conference of Commissioners on Uniform State
Laws
NIL Negotiable Instruments Law
NYLRC New York Law Revision Commission
RUSA See URSA
ucc Uniform Commercial Code
URSA Uniform Revised Sales Act

BIBLIOGRAPHICAL NOTE
References in the footnotes to KLP refer to the Collection of
Karl Llewellyn Papers in the Law School of the University of
Chicago. The method of citation follows the inventory in The
Karl Llewellyn Papers: A. Guide to the Collection by Raymond
M. Ellinwood Jr. and William L. Twining (Revised edition, 1970,
University of Chicago Law School Library Publications), to
which reference should be made. This includes a list of the un-
published manuscripts by Llewellyn to be found in the Chicago
Collection. A small number of other manuscripts (mainly teaching
materials) are in the possession of the Law Library of Columbia
University.
The select bibliography in the present book refers to Llewellyn's
most important published and unpublished works. A full biblio-
graphy of his published writings is to be found in The Karl Llewellyn
Papers by William Twining (University of Chicago Law School,
xg68). That work also contains a description and evaluation of the
Karl Llewellyn Collection in Chicago and a selection of hitherto
unpublished manuscripts by Llewellyn.
PART ONE

The Rise of the Realist

~oven1ent 1870·1931
Introduction

A common error in contemporary jurisprudence consists in treat-

ing all 'legal theories' as if they were rival attempts to answer the
same question or set of questions. The most obvious form of this
error is to assume that all such theories represent purported
answers to the ambiguous question: 'What is law?' There can
be few jurists of note who have not been subjected to criticism
which either distorts or ignores what they were trying to do. This
study starts from the premise that jurisprudence is not a one-
question subject and that the realist movement is significant in
large part because its members helped, both directly and by the
responses they provoked, to shed light on some relatively neglected
topics.
Despite a recent tendency towards more sympathetic treatment,
a depressingly high proportion of the enormous secondary litera-
ture on American legal realism consists of superficial interpretation
and unnecessary polemics. While a variety of factors, political,
cultural and academic, has no doubt contributed to this state
of affairs, the error of treating all legal theories as compar-
ables is at once the most significant and the most easily avoided.
It is an elementary axiom of intellectual history that the first
step towards understanding a thinker is to identify the questions
which worried or puzzled him. In the case of the variously
defined aggregation of American jurists known as 'the realists' it is
especially important to identify the main concerns of the early
members of the movement and their forerunners. It is worth risk-
ing charges of over-simplification to begin by setting those
concerns in a broad historical context.
Professor Max Rheinstein has suggested that three problems
arising out of the American legal experience have dominated
the consciousness of her jurists : 1 the problem of adapting the
4 KARL LLEWELLYN AND THE REALIST MOVEMENT

common law to the circumstances of the New World; the prob-

lem of giving specific content to the broad formulas of the
constitution of I 787 and of adapting these formulas to meet
changing conditions; and, thirdly, the preservation of the unity
of the common law in a heterogeneous country with a multi-
plicity of jurisdictions. To this list might be added two reli!ted
problems: that of modernization of the law in the wake of the
industrial and technological revolution that swept the United
States in the period after 1870, and the problem of simplifica-
tion of the sources of law, as the legal profession and the courts
became more and more swamped by the prodigious output of
legislation, regulations and reported cases. In turn, these attempts
to simplify helped to generate a reaction based on the view that
the preferred 'solutions' did not take adequate account of the
complexities of modern life.
In this interpretation, which itself reflects the perspective of
a law teacher in a leading American law school, adaptation of
law, and judicial adaptation in particular, constitute the
principal theme. The reception of the common law into the
United States involved the importation of doctrines and tech-
niques developed in a small, homogeneous, relatively stable
aristocracy into a large, heterogeneous, fragmented, expanding
democracy. 2 The constitution of 1787 required interpretation
and reinterpretation to keep the political framework of the
Union strong, but flexible, in the face of new demands. The rapid
growth of urbanization and industrialization in the late nineteenth
century and after were seen as leading to a marked social lag-
a gap between modern needs and the capacity of established
institutions to meet them. In the case of law the problem of
adaptation was made additionally acute by certain important
inhibitions on radical legal change. Governmental power has been
both limited and widely diffused in the United States. The consti-
tution, with its distribution of authority between the federal
government and the various states, and its system of checks and
balances, has proved to be remarkably tough and resilient. But
the diffusion of power, coupled with the dominance of special
interest groups in some state governments contributed to the result
that the various legislatures have, during some periods, been
relatively ineffectual as agencies of legal change, especially in
respect of private law, and the initiative has often passed else-
 INTRODUCTION 5
where. A large part of that initiative passed to the courts,
especially in the period preceding the relatively late growth of
administrative agencies. Much of the history of American public
law is written in terms of the activities of the federal judiciary
and especially of the Supreme Court; to a lesser but nonetheless
considerable extent the state courts have a comparable place in
the story of the adaptation and development of private law.
Courts, in the United States as elsewhere, have been conceived
first and foremost as institutions for the resolution of individual
disputes. They were not designed as law-making agencies. Such a
role was not easy to reconcile with the idea, enshrined in the
constitution, of 'a government of laws and not of men', a phrase
which suggests, inter alia, that judges should impartially apply
pre-existing rules to the disputes before them. Moreover, because
their proceedings are public, and because of the modern practice
of publishing judgments of superior courts, their work is peculiarly
accessible to close scrutiny. Judicial processes are among the
most visible of decision-making processes. 8
The relative importance of the courts, their visibility and the
conflict between role and ideal made it almost inevitable that
they should occupy a high proportion of the attention of American
jurists in the twentieth century. In fact academic law in the
United States has had an extraordinarily court-centred tradi-
tion, as is illustrated by the predominance of the case method in
law teaching, the emphasis placed by legal historians on judicial
development of the law, the enormous literature on the Supreme
Court, and the concern with the nature of judicial processes in
jurisprudence.
Adaptation to changed conditions has been only one of the
perennial problems of law in United States history. The size of the
country and its multiplicity of jurisdictions generated the further
related needs of unification and simplification of law. The
common law when exported abroad has proved to be sturdy,
surviving to a remarkable extent translation to different climates,
cultures and political systems. The preservation of a common
consciousness and of a basic similarity in approach among
common lawyers has been largely independent of the location of
political power. The United States provides a striking example
of the capacity of the common law tradition to outlive both
6 KARL LLEWELLYN AND THE REALIST MOVEMENT

decolonization and the subsequent diffusion of power through a

federal structure.
The resilience of the common law made the problem of main-
taining its unity in the United States rather less acute than the
problem of adapting it to changed conditions. Despite the
decentralization of political authority, especially in the sphere of
private law, the common law in the various states was slow in
showing distinct signs of growing apart. However, by the middle
of the nineteenth century the need for something to be done
about the preservation of the unity of American law began to be
recognized. Since private law for the most part fell within the
jurisdiction of the states, none of the major organs of the federal
government-congress, the federal courts, nor the executive-was
well placed to see law in the Uniteq States as a whole. The state
legislatures and courts were even less well-equipped to do so.
Accordingly the main burden of the task fell on non-governmental
agencies, notably to the law schools and the bar.
The contribution of the leading law schools in this respect
was important. Even from the early days of the Litchfield Law
School,' many of them insisted on regarding themselves as
national institutions concerned with the law of all the American
jurisdictions, not just the local law, and they drew their students
from all over the United States; by doing so they ensured that
the leaders of the profession would have a national outlook and
a shared heritage. The same perspective dominated the approach
to research and writing of the leading legal scholars. Thus law
schools did much to preserve and foster a high degree of
uniformity in respect of education and research, thereby helping
to maintain a single legal culture. But as institutions they were
individualistic and so were the law teachers; schools and indi-
viduals duplicated each others' efforts, with relatively little sharing
out of functions or coordination. The steady pressure of the over-
riding problem did stimulate various attempts to produce co-
ordination at a national level. Institutions proliferated; some, like
the National Conference of Commissioners on Uniform State
Laws and the American Law Institute, a were especially created
to deal with problems of unification and reform, some represented
special interests, such as the American Bar Association and the
Association of American Law Schools. Perhaps the biggest single
contribution to maintaining uniformity of laws was made by the
 INTRODUCTION 7
leading treatise writers of the nineteenth and early twentieth cen·
turies, several of whom were associated with Harvard: Story,
Williston, Beale, Gray and Thayer. 6 Their treatises, and associated
scholarly productions, helped not only to unify, but also to simplify
and systematize the common law in the United States. The prolifera-
tion of precedents and of other authoritative sources generated a
perennial need for simplification, which was made especially acute
by the very success of efforts to maintain a single legal culture.
For the state courts were prepared to pay almost as much
deference to precedents from other American jurisdictions-and
beyond- as they were to their own. The result was that from
the middle of the nineteenth century up to the present day
American lawyers and judges have had to cope with a body of
reported cases which is so vast and varied as simply to undermine
the basic rationale of a system of precedent. Thus the relative
ineffectiveness of the legislatures and the unmanageability of
the primary sources of law were among the factors which gave
American legal scholars the opportunity to play a much more
important part in their legal system than their counterparts in the
British Isles.
The American realist movement can be viewed as one phas~
of the response of American jurists to the problems of unification,
systematization and modernization of American Law. Legal
realism was, in the first instance, a product of the concerns of a
number of teachers of law, nearly all of whom were based in a
few leading law schools on the eastern seaboard of the United
States. These concerns reflected the complex situation of American
academic lawyers: as teachers they were faced with the problems
of the aims, the methods and the quality of formal preparation for
the practice of law; as scholars they needed to ask: What should
be the functions and the scope of legal research? As intellectuals
of a kind they were affected by some powerful trends in contem-
porary American social and philosophical thought. As lawyers
they had a dual perspective in that they were called on to identify,
at least in part, with the practitioners working in the existing
legal structure, while at the same time they were particularly well
placed to see law in the United States as a single system, transcend-
ing the boundaries of the various state and federal jurisdictions.
As reformers, they were acutely conscious of a seeming lag between
8 KARL LLEWELLYN AND THE REALIST MOVEMENT

legal and social change. To understand the realist movement

it is important to see it in the context of these concerns.
In this perspective, the controversies between analytical and
sociological jurists and between 'formalism' and 'functionalism'
appear, at least in part, to reflect differences over the priorities
to be given to the relatively 'static' needs of unification and
systematization and the 'dynamic' need for continuous adaptation
of legal institutions to changed conditions and values. In the
United States the complexity of its legal system and the pace
of change during the past hundred years have combined to
accentuate the strain between these competing needs. The realist
movement represents part of the radical vanguard who called for
a 'dynamic' jurisprudence as a basis for bringing a greater sense
of urgency to bear on the problems of adapting the legal system
to the needs of the twentieth century.
While it is helpful to see the realist movement in the context
of a broad interpretation of American legal history, this is only
one aspect of the concerns of the early realists. Their general
intellectual milieu is no less important. Apart from its relation-
ship to the international literature of jurisprudence, realism can
be seen as part of a general movement in American social thought
which is sometimes characterized as 'the revolt against formalism'.
In a useful study Morton White has pointed to the close affinities
between certain leading figures in several disciplines at the turn of
the century, notably John Dewey and the pragmatists in philo-
sophy, Charles Beard and J. H. Robinson in history, Thorstein
Veblen the economist and satirist, and Mr Justice Holmes in
jurisprudence. 7 All of these men were innovators in their fields;
all of them were eager 'to come to grips with life, experience,
process, growth, context, function'. 8 All rejected the emphasis
placed in their respective disciplines on deductive logic, abstrac-
tion and analogies from mathematics. Although they were instru-
mentalists, they tended to be anti-Benthamite, or at least to be
ambivalent towards him, being particularly critical of the ahistor-
ical approach of English utilitarians.& 'In their positive ideas they
showed great respect for science, historical method, economic inter-
pretation and cultural analysis.'10 Of particular relevance to the
student of realism was their insistence on the unity of truth and
the logic of its discovery and a disrespect for artificial boundaries
between disciplines. It is dangerous to generalize about the intel-
 INTRODUCTION 9
lectual development of so independent-minded and diverse a
group as the early realists, but it is fair to say that 'the revolt
against formalism' was an important part of the general intellec-
tual climate that fostered their approach.
The historic problems of the American legal system, the writ-
ings of men such as Dewey, Bentley, Veblen and Beard, and the
whole vast heritage of European jurisprudence, especially that of
England and Germany, are all an essential part of the background
of American legal realism. However, especially in the early phases,
the foreground is dominated to a large extent by some more
immediate, specialized concerns of academic lawyers about how
they should approach their tasks of teaching and scholarly
research. One premise of this essay is that the rise of the realist
movement is best understood by concentrating on a few individual
law teachers, all of whom happened to be based on three eastern
law schools, Harvard, Yale and Columbia. To some extent the
ideas of these particular individuals reflected trends in other law
schools and in the world outside; to some extent they were unique
or idiosyncratic or path-breaking. Accordingly, the next three
chapters will consist of a series of sketches, which taken together
illustrate the main threads in the story of the rise of the realist
movement from I87o to 1931 and bring into focus the complex
interplay of juristic, technical legal, philosophical and educational
issues which lies at the root of realist thought.
I

Langdell's Harvard

The story of the development of the Harvard Law School after

1870, and of American legal education as a whole, is commonly
presented as a straightforward example of charismatic leadership.1
In that year Christopher Columbus Langdell was appointed profes-
sor and shortly afterwards was elected Dean of the Harvard Law
School. He was responsible for a number of innovations, the best
known being the case method of instruction. Langdell's approach
was based on a coherent but simple theory of law teaching, which
he applied with consistency and determination. This theory
provided the basis for an educational orthodoxy which underlies
much of modern American legal education. It is arguable that
in the hundred years that followed Langdell's appointment there
have been few radical changes in American legal education, despite
numerous attempts at innovation and experiment. The funda-
mentals of the Langdellian orthodoxy survived to a remarkable
degree periodic bouts of dissatisfied introspection on the part of
law teachers, and it was only in the late I g6os that the combina-
tion of racial tension, student unrest, the war on poverty and the
war in Vietnam threatened to rock the established order in some
leading law schools.
Presented thus, the story does less than justice to the richness
and complexity of developments in American legal education
between 1870 and 19702 But it is useful as a device for dramatiz-
ing the conflict of ideas that underlies the realist controversy. In
so far as legal realism was in the first instance a reaction against
an approach to law that was characterized as 'formalism', LangdeU
can be treated as a leading representative of this approach. To
some critics (notably Holmes and Frank) Langdell quite explicitly
symbolized 'the enemy' ;8 in their hands the symbol deteriorated
into caricature, and this too is revealing, for it is a good example
 LANGDELL'S HARVARD II

of a tendency to over-reaction on the part of some realists, which

in turn made them vulnerable to charges of extremism.
The gist of Langdell's theory is to be found in two famous
passages. In the preface to his casebook on contracts he stated:
Law, considered as a science, consists of certain principles or doctrines. To
have such a mastery of these as to be able to apply them with constant
facility and certainty to the ever-tangled skein of human affairs, is what
constitutes a true lawyer; and hence to acquire that mastery should be the
business of every earnest student of law. Each of these doctrines has arrived
at its present state by slow degrees; in other words, it is a growth, extending
in many cases through centuries. This growth is to be traced in the main
through a series of cases; and much the shortest and best, if not the only way
of mastering the doctrine effectually is by studying the cases in which it is
embodied. But the cases which are useful and necessary for this purpose at
the present day bear an exceedingly small proportion to all that have been
reported. The vast majority are useless, and worse than useless, for any
purpose of systematic study. Moreover the number of fundamental legal
doctrines is much less than is commonly supposed; the many different guises
in which the same doctrine is constantly making its appearance, and the
great extent to which legal treatises are a repetition of each other, being the
cause of much misapprehension. If these doctrines could be so classified and
arranged that each should be found in its proper place, and nowhere else,
they would cease to be formidable from their number.'
Fifteen years later, on the commemoration of the 250th anniver-
sary of the founding of Harvard College, he explained the basis
of his approach as follows:
[It] was indispensable to establish at least two things; first that law is a
science; secondly, that all the available materials of that science are
contained in printed books. If law be not a science, a university will best
consult its own dignity in declining to teach it. If it be not a science, it is a
species of handicraft, and may best be learned by serving an apprenticeship
to one who practices it. If it be a science, it will scarcely be disputed that it
is one of the greatest and most difficult of sciences, and that it needs all the
light that the most enlightened seat of learning can throw upon it. Again,
law can be learned and taught in a university by means of printed books. If,
therefore, there are other and better means of teaching and learning law
than printed books, or if printed books can only be used to the best advan-
tage in connection with other means, - for instance, the work of a lawyer's
office, or attendance upon the proceedings of courts of justice, - it must be
confessed that such means cannot be provided by a university. But if printed
books are the ultimate sources of all legal knowledge; if every student who
would obtain any mastery of law as a science must resort to these ultimate
12 KARL LLEWELLYN AND THE REALIST MOVEMENT

sources; and if the /only assistance which it is possible for the learner to
receive is such as can be afforded by teachers who have travelled the same
road before him, - then a university, and a university alone, can furnish
every possible facility for teaching and learning law.... We have also
constantly inculcated the idea that the library is the proper workshop of
professors and students alike; that it is to us all that the laboratories of the
university are to the chemists and physicists, all that the museum of natural
history is to the zoologists, all that the botanical garden is to the botanists.'
Langdell had no pretensions to being an original legal theorist.
These statements are two rare examples of occasions on which he
made explicit his more general assumptions. Allowance must be
made for the point that the preface to a casebook and a commem-
orative address are not contexts which normally call for a care-
fully phrased statement of a theoretical position. However, these
two statements, read together, are singularly revealing and several
features of them call for comment. Firstly, Langdell placed great
emphasis on law as a 'science', analogous to physical sciences
such as chemistry and botany.6 It will be seen later that 'the
scientific analogy' also had a powerful grip on the minds of several
leading realists, for example Cook and Moore; but the concept of
'science' did not have identical associations for these jurists,
although their ideas had some common roots in nineteenth-
century positivist thought. To Langdell 'science' conjured up the
ideas of order, system, simplicity, taxonomy and original sources.
The science of law involved the search for a system of general,
logically consistent principles, built up from the study of particular
instances. Like the scientist, the lawyer should study original
sources; like the botanist, he must select, classify and arrange his
specimens. 1 In the passages quoted, Langdell does not explicitly
distinguish normative from descriptive propositions but confi-
dently equates legal principles with scientific laws; he makes no
mention of experimentation and empirical observation. He
asserts, rather than argues, that reported cases are the only possible
'specimens' and that the law library is closely analogous to a
chemist's laboratory or a botanist's garden. Each of these ideas was
to be challenged in due course.
The next point to note is that Langdell's conception of law is
court-centred. Only cases are explicitly mentioned as primary
sources and they are to constitute the basic diet of law students.
The courts are seen as the primary agencies of legal change,
 LANODELL'S HARVARD 13
which itself is seen as a very slow evolutionary process. There is
perhaps even a hint that the common law may be nearing the
end of the process of historical growth, culminating in a final,
logically complete system. However, this is not a necessary
implication of Langdell's statement.
Finally, it is important to see the connection between Langdell's
assumptions about law and his pedagogical ideas. The connecting
link is the view that law is an autonomous science, quite distinct
from other disciplines, and that legal education should be co-
extensive with legal science. Law consists solely of principles or
doctrines and, in law school at least, law students should study
nothing but law. 8 Langdell was not necessarily a· philistine and
he did not deny the value to lawyers of a broad liberal education,
but to provide this was not part of the function of a law school.
If Langdell's conception of law set rather narrow limits on the
scope of legal education, his conception of 'science' provided the
basis for a stimulating mode of instruction. In the light of experi-
ence it is easy to see that Langdell's version of 'the case method'
was based on sound educational premises : it required the inten-
sive study of primary sources; by treating cases in chronological
sequence he gave both concreteness and historical perspective to
the study of legal rules; the method required disciplined participa-
tion rather than passivity on the part of students; it was more
sceptical and more lively than the dreary rote learning that it
in large part replaced; and, in the hands of a good teacher,
sustained by the competitive atmosphere of the American law
school, it secured many of the values of small-group teaching in a
remarkably economic fashion. Finally, the case method involved
an important switch from emphasis on learning rules of law to
emphasis on skill in 'legal analysis, legal reasoning, legal argument
and legal synthesis'.'
Langdell also invoked the idea of 'science' to give academic
respectability to a form of vocational training. 'If law be not a
science, a university will best consult its own dignity in declining
to teach it'/ 0 he could declare confidently in 1886, secure in the
knowledge that his conception of legal science had been firmly
established at Harvard. But was the study of 'legal science' consis-
tent with the aim of preparation for legal practice? Langdell
gave a glib answer. 'The true lawyer' is one who has such a
mastery of legal principles as to be able to apply them with
14 KARL LLEWELLYN AND THE REALIST MOVEMENT

'constant facility and certainty to the ever-tangled skein of human

affairs'.11 As a statement of the qualities and skills that go to
make up a good lawyer this formulation is inadequate and mis-
leading. At best it covers only one group of skills which are very
important for some types of lawyer. It ignores other skills and
qualities that might be developed by a rounded system of legal
education and it assumes that there is only one type of 'true
lawyer'; this assumption was not accurate in Langdell's day and
over time it has probably become less and less tenable. In
short, Langdell selected one lawyer-like quality and treated it as if
it were the only one. This enabled him to beg one of the central
questions facing contemporary legal education, namely, what
other skills and qualities of lawyers can appropriately be
developed in a university law school ?12 Furthermore, the distor-
tion in Langdell's rationalization of what he was doing was subse-
quently reflected in a corresponding tendency to over-use the
case method: one method of developing one type of skill became
the predominant method of formal professional training.
The weaknesses of Langdell's theory should not be allowed to
obscure his great contributions to legal education and legal
scholarship. It was by no means solely because of the case method
that Harvard Law School prospered under his leadership. During
his time admission standards were raised, a rigorous system of
examining was introduced, the foundations of a great library were
laid, an outstanding faculty was recruited, and an atmosphere
was generated which encouraged scholarly research and writing
of a high order. In short, a great educational institution was
created. In the sphere of legal research the contribution of
Harvard was of particular significance. Between 1886 and 1920
Harvard scholars, notably Williston, Beale, Gray and Thayer,
took the lead in writing a series of monumental legal treatises
which won immediate recognition among practitioners as well as
among legal scholars at home and abroad. These were truly
scholarly works, more substantial than many students' textbooks
and more systematic and more rigorously analytical than ordinary
practitioners' reference works. The assumptions and attitudes
underlying these treatises bore a close affinity to Langdell's concep-
tion of law. The approach adopted by their authors was well
suited to the systematization and simplification of law in a
relatively stable society. They conceived of their task as that of
 LANGDELL'S HARVARD 15
extracting principles from the morass of decided cases; on the
surface this involved neutral analysis and exposition of the exist-
ing law, but the variety of their sources allowed for an element of
choice and hence of quiet, interstitial creation. However, their
work was later criticized as being static and conservative by
jurists who were more concerned with the problems of adjust-
ment to change. As Professor Max Rheinstein has said:
The American legal scholars became the preservers of the uniformity of law
in the United States. They addressed themselves to this task in ways similar
to those of the legal scholars of Europe during the centuries in which they
had the task of preserving legal uniformity, namely through the formation
of a system and elaboration of concepts. This enterprise of [men like] Beale
and Williston, Bogert and Wigmore culminated in the Restatement of the
American Law Institute. Of necessity, these people used the method of the
jurisprudence of concepts as it had been brought to high perfection in
stable 19th century Europe, on the continent as well as in England.
The method was unavoidable in order to achieve the systematization of
the law, so urgently necessary in America. It did not stand up, however, to
the dynamics of the 20th century, the least so in the country in which the
legislatures have proved to be unable to adapt and develop the law,
particularly the private law. 18
Although even as late as the I g6os Harvard Law School was
regarded by some as the headquarters of Langdellian orthodoxy,
the situation is very much more complicated than that. Langdell
was not as doctrinaire as his critics suggest, his ideas were not
slavishly followed, and Harvard for the most part followed a flexible
policy of recruiting to its faculty men of outstanding ability and
giving them great freedom to pursue their own ideas according to
their own lights. If an orthodoxy prevailed, it was never oppressive
nor doctrinaire. Moreover, the first significant attack on Langdell's
ideas was mounted from within.

In 188o Oliver Wendell Holmes Jr took issue with Langdell.

In a review of A Selection of Cases on the Law of Contracts he
wrote:
Mr Langdell's ideal in the law, the end of all his striving, is the elegantia
juris or logical integrity of the system as a system. He is, perhaps, the greatest
living legal theologian. But as a theologian he is less concerned with his
postulates than to show that the conclusions from them hang together.u
The Olympian figure of Holmes presides, like some brooding
16 KARL LLEWELLYN AND THE REALIST MOVEMENT

omnipresence, over all discussions of American legal realism.

While it would be foolish to deny that he was its most important
;forerunner, it is impossible to delineate his relationship to the
movement with precision. It is difficult in the history of ideas to
distinguish between affinity and influence and between symptom
and cause; in the case of Holmes there are other complicating
factors: he recognized that judges can and do make law, but he
was the leading protagonist of judicial restraint; he had no
systematic, integrated philosophy, his taste for paradox invited
conflicting interpretations of his ideas, and it is not always easy
to distinguish between those who were genuinely his intellectual
disciples and those who were mainly admirers of Holmes the
man, the genial patrician, the impish visionary and the courage-
ous judge.u Moreover, in a juristic tradition that has been
dominated more by sages than by philosophers, Holmes was the
Supreme Sage. His Delphic aphorisms can be made to serve as
convenient catch-phrases which somehow make detailed criticism
of them appear pedantic. 'The life of the law has not been logic,
it has been experience?' intoned Holmes in 1881. 'What precisely
is meant by "experience" here?' asks the critic. 'Is it meaningful
to contrast "logic" and "experience"? Is it not absurd to suggest
that logic has nothing to contribute to legal thought?' 17 Such
criticisms have some force, but the aphorism survives largely
because of, rather than in spite of, its succinct and suggestive
ambiguity.
Succinctness and suggestiveness are the two outstanding
qualities of Holmes' famous paper 'The Path of the Law', which
contains in the space of a few pages an extraordinary number
of strikingly provocative statements about legal education and
law. Among these is a passage which has often been treated as
summarizing Holmes' 'Theory of Law' (whatever that may
mean):
Take the fundamental question, What constitutes the law? You will find
some text writers telling you that it is something different from what is
decided by the courts of Massachusetts or England, that it is a system of
reason, that it is a deduction from principles of ethics or admitted axioms
or what not, which may or may not coincide with the decisions. But if we
take the view of our friend the bad man we shall find that he does not care
two straws for the axioms or deductions, but that he does want to know what
 LANGDELL•s HARVARD 17
the Massachusetts or English courts are likely to do in fact. I am much of
his mind. The prophecies of what the courts will do in fact, and nothing
more pretentious, are what I mean by the Iaw. 18

To understand this passage and its significance it is necessary to

see it in the context not only of the 'Path of the Law' but also of
the occasion on which it was delivered. In 1897 Holmes, who
had been a member of the Supreme Judicial Court of Massa-
chusetts since r882, was invited to give an address at the dedica-
tion of a new hall at Boston University School of Law. Langdell
had resigned from the deanship of Harvard two years before, but
he was still teaching and his influence was not only dominant
there, but had also spread rapidly to other law schools. It is quite
clear that 'The Path of the Law• is directed at law students and
their teachers, and that much of it is a not very indirect attack
on some aspects of the new orthodoxy in legal education.
In fact Holmes spread his fire rather wide and not all the ideas
that he criticized are attributable to Langdell: he warned against
'the pitfall of antiquarianism' in legal history ('for our purposes
our only interest in the past is for the light it throws upon the
present'),19 he dismissed as unenlightened the practical minded
who undervalued jurisprudence ('We have too little theory in the
law rather than too much')/ 0 he placed the study of Roman law
'high among the unrealities', 21 and he deplored the neglect of
economics by lawyers ('For the rational study of the law the
blackletter man may be the man of the present, but the man of
the future is the man of statistics and the master of economics').22
But Holmes' main shafts were directed against two fallacies: the
tendency of students when learning law to fail to distinguish
clearly between law and morality and 'the fallacy of the logical
form', that is 'the notion that the only force at work in the
development of the law is logic'. 28
The device of the bad man is introduced initially to deal with
the first fallacy: 'If you want to know the law and nothing else,
you must look at it as a bad man, who cares only for the material
consequences which such knowledge enables him to predict, not
as a good one, who finds his reasons for conduct, whether inside
the law or outside of it, in the vaguer sanctions of conscience.' 2 ~
While it may be true that the 'bad man's' main interest in legal
18 KARL LLEWELLYN AND THE REALIST MOVEMENT

rules is as aids to predict what will happen to him rather than as

guides to socially correct action,n the idea of prediction is
unnecessary for the purpose of distinguishing between law as it is
and law as it ought to be. As critics of 'the prediction theory'
have pointed out, it is strange to say that advocates, judges,
textbook writers or legislators are primarily concerned to
predict judicial decisions ;28 yet from such standpoints too the
distinction between law and morals is also relevant and useful.
But 'the bad man' is a neat device for dramatizing the point
that there are other ways of looking at law than as a logically
consistent body of rules. For the purposes of the intending
practitioner there is a more realistic way of viewing the subject-
matter of his studies and this is inevitably linked to the idea of
prediction. In the opening paragraph of 'The Path of the Law'
Holmes made clear the significance of this for legal education:
When we study law we are not studying a mystery but a well-known
profession. We are studying what we shall want in order to appear before
judges, or to advise people in such a way as to keep them out of court. The
reason why it is a profession, why people will pay lawyers to argue for them
or to advise them, is that in societies like ours the command of the public
force is intrusted to the judges in certain cases, and the whole power of the
state will be put forth, if necessary, to carry out their judgements and
decrees. People want to know under what circumstances and how far they
will run the risk of coming against what is so much stronger than themselves,
and hence it becomes a business to find out when this danger is to be feared.
The object of our study, then, is prediction, the prediction of the incidence
of the public force through the instrumentality of the courts. 8 7
This passage clearly indicates that Holmes treated his audience
as intending private practitioners, who would spend much of
their time as office lawyers giving advice. In advocating that they
should adopt the standpoint of the 'bad man', he was presumably
not intending to suggest that they should be unethical or amoral,
but rather that they should be clear thinking, hard-headed and
realistic and that as law students they should look at law in
the same way as they would look at it in practice. This Langdell
and his colleagues were patently failing to do and Holmes was
expressing in a memorable way the standard criticism of the
practitioner against academic law. But Holmes was careful to
dissociate himself from the anti-intellectualism and narrow-
 LANODELL'S HARVARD 19
mindedness of some men of affairs. Indeed he ended on a note
that was visionary and idealistic:
An intellect great enough to win the prize needs other food besides success.
The remoter and more general aspects of law are those which give it
universal interest. It is through them that you not only become a great
master in your calling, but connect your subject with the universe and
catch an echo of the infinite, a glimpse of its unfathomable process, a hint
of the universal law. n

Holmes and those who followed him in talking of law in terms

of predictions of judicial decisions have been much criticized,
mainly on -the ground that they confused the concepts of 'predic-
tion' and 'legal rule'. 29 When Holmes' definition, if such it was,
is taken as the basis for a purportedly rounded theory of law
which could accommodate a variety of standpoints, including
particularly those of the judge, the legislator, the expositor of
legal doctrine and the 'good' citizen who looks to legal rules as
guides to conduct, then it is indeed vulnerable to such criticism.
However, the critics have tended to overlook the fact that the
context of the 'bad man' statements was a discussion of legal
education and that Holmes is much more illuminatingly treated
as putting forward an alternative philosophy of legal education to
that which was prevailing at the time than as expounding a
complete philosophy of law. 30
Holmes's views on legal education are scattered throughout his
many speeches, essays and letters. 31 It was obviously a matter
about which he cared deeply, but he was sceptical of the value of
sustained analysis of educational problems. A result was that he
did not spell out in detail the implications of an approach to
legal education which takes the standpoint of 'the bad man'. He
did not point out, perhaps he did not realize, that its implementa-
tion would almost inevitably involve redefinition of the subject
matter of study, a re-classification of its component parts, the
introduction of hitherto little used or unused source materials,
and the development of a new genre of legal literature, which
would need, in many instances, to be preceded by extensive
research. The failure on the part of Holmes and his contempor-
aries to realize the full implications of the kind of perspective he
was advocating in 'The Path of the Law', together with the
enormous practical difficulties of implementing an approach
20 KARL LLEWELLYN AND THE REALIST MOVEMENT

related to that perspective, must be counted among the most

important reasons for the survival of the Langdellian system for
many years.
One of Langdell's contemporaries, John Chipman Gray (1839-
1915), is sometimes treated as the first American legal realist. 82
Gray was one of the great Harvard figures of the period. For
many years the only member of the Harvard faculty to continue
in legal practice while engaged in 'full-time' teaching, Gray was
considered by both practitioners and scholars to be the leading
property lawyer of his time. A down-to-earth, undoctrinaire indi-
vidualist, a master of the magisterial lecture, and more obviously
a man of affairs than most of his colleagues, Gray went his own
way at Harvard and was only converted very late to 'the case
system'. At a time when members of the bar were inclined to be
very critical of Langdell's innovations, Gray did much to allay
their suspicions, but he was never a wholehearted devotee of the
case method himsel£. 38 Indeed he shared Holmes' distrust of
Langdell's approach to law, the distrust of the practitioner for
the over-logical theorist. He appears to have normally been
circumspect in expressing his opinion of Langdell, but in a letter
to the president of Harvard he left no doubt about his attitude:
In law the opinions of judges and lawyers as to what the law is, are the law,
and it is in any true sense of the word as unscientific to tum from them, as
Mr Langdell does, with contempt because they are 'low and unscientific',
as for a scientific man to decline to take cognizance of oxygen or gravitation
because it was low or unscientific .... Langdell's intellectual arrogance and
contempt is astounding. One may forgive it in him or Ames, but in an
ordinary man it would be detestable. The idols of the cave which a school
bred lawyer is sure to substitute for the facts may be much better material for
intellectual gymnastics than the facts themselves and may call forth more enthusiasm
in the pupils, but a school where the majority of the professors shuns and
despises the contact with actual facts, has got the seeds of ruin in it and will
and ought to go to the devil. u
Although deeply suspicious of 'school men', Gray conformed to
scholarly conventions. His most important work of scholarship,
his famous The Rule Against Perpetuities,S 5 belongs to the same
genre as the treatise of Williston, Beale and Thayer. Nor do his
influential six volumes of Select Cases and Other Authorities in
the Law of Property 86 suggest a marked unorthodoxy in his ideas
on legal research. His reputation as a heterodox jurist rests almost
 LANGDELL'S HARVARD 21

entirely on his last book, The Nature and Sources of Law.81

Except as an example of his felicitous style of writing, this is not
typical of his work as a legal scholar. Published in his seventieth
year, it was the only substantial incursion into jurisprudence by
one who was generally regarded as a down-to-earth property
lawyer. Indeed, his close friend Holmes later commented to Laski:
'[A]nd intimately as I knew Gray I didn't suspect him [of being a
philosopher] until his book came out.' 88
The extent of the unorthodoxy of The Nature and Sources of
Law has sometimes been exaggerated. The one really striking
idea, which has attracted much critical attention, is Gray's asser-
tion that nothing is law until it has been declared to be so by the
courts. 89 Gray drew a sharp distinction between law and sources
of law and advanced the strange theory that a statute is not 'law'
but is only a source of law.
In attempting to refute 'the declaratory theory' of judging
(which he attributed to J. C. Carter) and to explain 'gaps' in the
law, Gray was led to place great emphasis on the fact that the
final authority for resolving doubtful points of law is vested in the
courts and not in the legislature. He summarized his theory about
the nature of law in the form of a definition:
The Law of the State or of any organized body of men is composed of the
rules which the courts, that is, the judicial organs of that body, lay down
for the determination of legal rights and duties."

This provocative statement has already been accorded more

critical attention than it deserves, for neither is it based on
particularly acute analysis nor does it appear to have been widely
adopted, except as a convenient Aunt Sally.41 Indeed, it is diffi-
cult to understand in what sense this is thought to be 'realistic'.42
The Nature and Sources of Law for the most part reflects the
conventional wisdom of the time and there is little in the book
that is either original or profound. Its chief virtues are its lucidity
and its homely common sense which help to make it unusually
readable for a treatise on legal philosophy. Philosophically it is
rather naive, the work of a learned man of affairs who wandered
belatedly into the realms of abstract analysis. Its main claim to
originality lies in the great, indeed the excessive, significance
attached to the finality of judicial decisions. As so often happens
in jurisprudence, the weakest part of the work has been the main
22 KAR.L LLEWELLYN AND THE REALIST MOVEMENT

reason for its continued prominence. In fact Gray's ideas presented

no serious threat to the Langdellian orthodoxy. In his emphasis on
judicial law-making, and in his rather simplistic manner of testing
juristic theories to see if they 'fit the facts', Gray could be said
to have taken a step away from Austin and Langdell in the direc-
tion of realism. But in his teaching he was, if anything, pre-
Langdellian, he was an oustanding but essentially orthodox legal
scholar and as a theorist he went less far than Holmes in question-
ing the basic assumptions of his colleagues or in suggesting the
basis for a more empirically oriented approach to law.

Less easy to explain is the relationship of Roscoe Pound to

Langdellism and to the realist movement. As the leading prophet
of sociological jurisprudence Pound might be expected to have
been an open critic of the former and a member, or at least an
ally, of the latter. Instead, as Dean of the Harvard Law School
for twenty years, he presided with little apparent discomfort over
what many considered to be the main stronghold of Langdellian
orthodoxy, and he was one of the foremost critics of realism.
The names of Holmes and Pound are often linked. Both were
Harvard men, both were pioneers of sociological jurisprudence
in the United States, and between them they dominated American
jurisprudence for many years. They had contrasting styles:
Holmes was a patrician sage, given to aphorisms; Pound was a
savant with little of Holmes' cutting edge but unrivalled in the
breadth of his reading and in his capacity for synthesizing the
ideas of others. Some measure of Pound's achievement is indicated
by the extent to which the names of some of his better known
papers have become catch-phrases: 'The Limits of Effective
Legal Action'/ 3 'Mechanical Jurisprudence',44 'Survey of Social
Interests'/ 3 'Law in Books and Law in Action'/ 6 and 'The Need
for a Sociological Jurisprudence'. 47 Where Pound did not origin-
ally coin these phrases, he was largely responsible for giving them
wide currency.
Pound saw more clearly than anyone, and earlier than most,
the relevance to law of 'the revolt against formalism'. In a
famous passage, published in xgog, he wrote:
Jurisprudence is the last in tne march of the sciences away from the method
of deduction from predetermined conceptions. The sociological movement
in jurisprudence, the movement for pragmatism as a philosophy of law,
 LANGDELL'S HARVARD 23
the movement for the adjustment of principles and doctrines to the human
conditions they are to govern rather than to assumed first principles, the
movement for putting the human factor in the central place and relegating
logic to its true position as an instrument, has scarcely shown itself as yet
in America. u ·

This and many other similar passages could be interpreted as

prophecies of the advent of realism. And, as Llewellyn later
acknowledged, 'half of the commonplace equipment' of the new
jurisprudence of the 1920s and 1930s had been provided by
Pound :49 the theory of interests, the idea of law as a form of
social engineering, the emphasis on interdisciplinary cooperation
and on the need for factual data about the law in action, concern
with the nature of judicial discretion, were among the themes that
were given an airing by Pound before the realist movement got
under way at Yale and Columbia.
Yet somehow he seemed unable to avoid reducing such ideas to
the status of bland generalities to which 'legal monks' 60 could
render lip-service and continue to behave as before. 61 And Pound
proved on many occasions to be remarkably unperceptive about
the practical implications of his general ideas. At Harvard during
his Deanship, despite continuous self-appraisal on the part of the
faculty, 62 there were remarkably few changes in the style and
content of the undergraduate curriculum, and the kind of innova-
tions that might have been expected of a sociologically oriented
Dean were for the most part relegated to the status of fringe
activities.
Two incidents, in themselves relatively minor, illustrate the
failure of America's leading jurist to realize the promise of his own
teachings. In 1915 he deliberately restricted his own course on
jurisprudence to postgraduates, the implication being that this
subject was at best an optional extra, which might confuse, dis-
tract, or-it has been suggested-contaminate the ordinary run
of intending practitioners. 68 In 1923-4 Pound was actively
involved in the American Law Institute's plans for the Restatement
of Law. In connection with this he was asked to prepare a paper
on classification of law.G4 Classification was a special interest of
Pound's- his first scholarly work had involved an elaborate tax-
onomy of Nebraskan plantsG 6 -and the occasion provided an
excellent opportunity for him to question the prevailing mode of
dividing law into a number of overlapping, ill-defined 'fields' such
24 KARL LLEWELLYN AND THE REALIST MOVEMENT

as contract, tort, equity, conflicts of law, and to suggest a scheme

of classification which more adequately reflected sociological and
economic categories. Pound's paper might well have been written
by someone who had never heard of 'sociological jurisprudence'.
He did little more than to provide a potted history of various
theories of classification, only to reject most of them in favour of
acceptance of the traditional categories of the common law:
'Our law has grown up around certain conceptions which have
been developed by analogy such as Contract, Tort, Trust. We
ought to use these categories as far as we can.' 56 This comforting
advice was accepted by the American Law Institute.
A considerable proportion of the work of members of the
realist movement can be viewed as a series of attempts to concret-
ize sociological jurisprudence, by seeking to apply it in practice
in a variety of spheres. From this point of view Pound should
have been the high priest of the realist movement rather than
one of its fiercest critics. It will be seen later that Pound's attacks
on realism were based largely on misunderstanding and that his
antipathy did not seem to be rooted in any profound intellectual
disagreements. 57 Similarly, the main complaint of realists who
criticized Pound, such as Llewellyn and Oliphant, was not that
his ideas were wrong, but that their detailed implications had
not been worked through thoroughly and in sufficient detail
for sociological jurisprudence to be more than a set of vague
aspirations. 58 Pound's theories were not in such a form that they
could be used in reforming the law or legal education or legal
research or by judges or practitioners in their daily work. To
them Pound's weakness was that too often he was prepared to
allow jurisprudence to be treated as a subject apart.
The association with Harvard of men like Holmes, Gray and
Pound no doubt ensured that there was no simple victory there
for a cloistered, over-logical approach to law. The scepticism of
Holmes was a powerful antidote to crude dogmatism, men like
Gray ensured a healthy tension between the system-builder and
the practitioner, and Pound managed at least to give an aura of
respectability to talk of 'sociological jurisprudence'. At a later
stage the presence of a Felix Frankfurter or a T. R. Powell indic-
ated that this was no mere temple of slumbering orthodoxy. But
in the teaching and research activities of the school the spirit of
Langdell more than the spirit of Holmes was in the ascendant,
 LANGDELL'S HARVARD 25
and, in other leading law schools, Harvard was seen more and
more as the headquarters of 'legal theology'. A fairly typical
picture of the law school by one who later reacted against it was
painted by Thurman Arnold in his autobiography:
In the fall of 191 I I entered Harvard Law School. It was a new and exciting
experience. Enough of my Western manners had rubbed off so that I was
no longer lonely. The professors at Harvard, compared with the Princeton
faculty, seemed intellectual giants. The narrow logic of the law, the building
of legal principle on the solid basis of a long line of precedents, and the
analysis of cases in class by the Socratic method were fascinating. It was also
fun to have to work hard, which one never did at Princeton. But the world
of the Harvard Law School was as much a world of eternal verities and
absolute certainties as it had been at Princeton. The study of human society
was divided into fields in which scholars could work without having to
acquaint themselves with what people were doing in other fields. The
principal fields were law and economics. Then there was another field called
the social sciences, though real scholars were dubious about whether this
field was truly a science. It was felt that only superficial scholars would be
content to work in the field of sociology. The study of psychology was some-
thing no sound scholar would care to be caught dabbling in. The idea that
thinking was a form of human behavior lay far beyond the horizon. The
writings of Freud were completely unknown to properly educated men.
The field oflaw in tum was carved up into many separate fields: contracts,
agency, corporations, real property, personal property, and so on. The
workers in these separate fields had little to do with the workers in other
fields. They were joined together at the top by the brooding omnipresence
in the sky called the science of jurisprudence. Through the wise application
of this science, the accidental inconsistencies of the minor fields were ironed
out and the law was made into a seamless web.
Professor Thomas Reed Powell, one of the few rebels on the Harvard
faculty twenty-five years later, said: 'If you can think of a subject which is
interrelated and inextricably combined with another subject, without
knowing anything about or giving any consideration to the second subject,
then you have a legal mind.' 68
This, it may be claimed, is a caricature. But it is fairly typical
of the picture of Harvard that was prevalent among those who were
seeking to develop an alternative approach at Yale and Columbia
in the next two decades. Whether or not the picture was entirely
fair is beside the point. In so far as the leaders of the realist
movement were in revolt against prevailing attitudes to legal
education and legal research, this kind of caricature of Langdell's
Harvard provided the principal target.
2

Corbin's Yale, 1897-1918

In the present interpretation six individuals will be singled out

as having made key contributions to the rise of the realist move-
ment between I9I4 and I93I: Corbin, Hohfeld, Cook, Underhill
Moore, Llewellyn and Oliphant. All but the last of these had close
connections with Yale Law School during this period. In I 93 I
Llewellyn and Frank compiled a list of twenty realists,! sixteen
of whom had at some time been associated with either Yale or
Columbia Law Schools, in several cases with both. Scrutiny of the
names of notable omissions from this list suggests no bias in
favour of the two law schools on the part of the compilers, but
rather the reverse. The fact is that, at least up to I928, the
realist movement, in so far as it was a discrete phenomenon, was
based on two law schools. It was in some respects analogous to
the Bloomsbury Group, in that there was no defined 'member-
ship', no shared dogma, and no concerted programme of action.
Rather, the 'movement' consisted of a loosely integrated collection
of interacting individuals, with a complex network of personal
relationships and an almost equally complex family of related
ideas, given some coherence, perhaps, by a shared dissatisfaction,
not always precisely diagnosed, with the existing intellectual
milieu of law in general and legal education in particular. It is
immaterial, from this point of view, that some of the ideas of 'the
realists' at Yale and Columbia were shared by people in other
institutions, even in the formative period, just as it would not be
particularly important, nor surprising, to find that there were
contemporaries who had affinities with Maynard Keynes or Virginia
Woolf, yet who were not members of the Bloomsbury Group. Of
course, the realist movement, like the Bloomsbury Group, must
also be put in a wider context. Some of this has already been
sketched, but there are aspects that will require further elaboration.
The point stressed here is that the immediate causes of the rise
 CORBIN'S YALE, 1897-1918 27
of the realist movement are to be found in a somewhat narrow
and parochial context, although the movement both reflected
much broader trends and had implications beyond the world of
the American law school.
The rise to eminence of the Yale Law School is closely linked
with the first phase of the realist movement. Up to 1918 the lead
was taken by three individuals: Corbin, Hohfeld and Cook. In
1919 an editorial of the Yale Law Journal pinpointed two lines of
thinking which had gained ascendancy in the law school during
the preceding years:
The first of these is that the rules of human action that we know as law are
constantly changing, that no system of human justice is eternal, that law
forms but a part of our ever-changing social mores, and that it is the function
oflawyers, ofjurists and oflawschools to cause the statement and the applica-
tion of our legal rules to be in harmony with the mores of the present instead
of those of an outgrown past. The second matter upon which emphasis has
been placed, and the one perhaps which has been most obvious in recent
pages of the Journal has been the necessity of a more exact terminology
leading to a more accurate legal analysis. 1
The chief proponents of these ideas were Corbin and Hohfeld
respectively. Arthur Linton Corbin was born in 1874 and brought
up on the prairies of Kansas. 8 Religious scepticism, the pioneer
spirit and a grandfather who 'laughed at orthodoxies' set the
tone of his early upbringing. His father was a farmer who had
taken an active part in making Kansas a 'free state'; his mother
was a school teacher for many years. As an undergraduate at the
University of Kansas, where he studied biology, anatomy and
chemistry, Corbin was deeply impressed by the theory of evolution.
From Kansas he went to the Yale Law School in 1897. At the
time the law school was an undistinguished institution with an
unimpressive body of students. Nearly all of the instruction was
given by lawyers and judges for whom teaching was only a side-
line. They included some men of outstanding ability, but this
merely serves to confirm the general experience that part-time
teachers, however distinguished, rarely on their own make a
distinguished law school.
The faculty was committed as a matter of firm policy to a
uniform method of instruction, known as the 'Yale system'.~ This
represented a deliberate entrenchment of traditional methods of
law teaching in resistance to the challenge of Langdell's case
28 KARL LLEWELLYN AND THE REALIST MOVEMENT

method, which had been introduced at Harvard in 187o-1 and

which had soon spread to a number of other law schools. 'We
were told', says Corbin, 'that the Case System at Harvard turned
out only "case lawyers", who could not argue from "principle",
but had to depend on finding a case "on all fours" .' 3 The 'Yale
system' consisted essentially of lectures, recitations, and the inten-
sive study of set textbooks, such as Robinson's Elementary Law
(a condensation of Blackstone), Jones on Mortgages and Cooley
on Torts. The object was to teach 'the principles of the law' and
the few cases that were studied were almost exclusively used
merely as examples. 'Recitations', as the name suggests, involved
the examination of students by the teacher on their knowledge of
the texts and cases, the standard question being framed to admit
solely of a correct or "'-ll incorrect answer. Some allowance was
made for classroom discussion but, as Corbin says, 'the greatest
weakness in the Law School was that we were given no experience
in the analysis of complex fact problems, in the comparison of
decisions, or in the formation or criticism of supposed rules'. 6
This weakness was the direct result of an explicit and cherished
theory as to the best way of preparing men for legal practice-
a theory held by men who were themselves first and foremost
practitioners and whose ability is not in question.
Corbin graduated with high honours in 1899 and went into
practice at Cripple Creek, Colorado. As a student he had not felt
particularly critical of the methods or the content of the teaching
he had received, but he soon found that what he had been taught
seemed to bear little relation to what was expected of him in
practice. 'Because my law teachers gave me nothing but canned
doctrine, I had to decide problems by the gut method almost
exclusively, and the pleadings I drew in four years of practice
were a scandal and a crime.' 7
In 1903 Corbin was invited to join the Yale law faculty. He
accepted and took charge of the first year course on contracts.
As soon as he started he realized that he was inadequately
equipped for the task: his years in practice had no better prepared
him for teaching than his time as a law student had prepared
him for practice. Now that he was embarking on a career as a
teacher and a scholar his central concern was to work out a
method of teaching and of exposition of legal doctrine which
overcame the inadequacies of the Yale system. He found nothing
 CORBIN'S YALE, 1897-1918 29
in the ideas or methods of his colleagues to help him to resolve
his puzzlement and so he started to try to solve the problem for
himself.
It is important to grasp the nature of Corbin's concern at this
time. He had only heard vaguely of Langdell and he knew nothing
of Austin, so he could hardly be said to be reacting against
either. 8 Critics of realism are wide of the mark when they
assume that it represents a reaction against Austinian juris-
prudence. Few, if any, of the realists were much concerned
with the same questions that dominated the attention of Austin
and his successors. Corbin provides a particularly clear example.
There is practically nothing in his early writings which can be
interpreted as direct criticism of Austin or Markby or Holland or
Salmond. Indeed, at the end of his life he claimed that he had
never read Austin and even that 'in my early teaching years I
knew nothing of Roscoe Pound except that he talked of "socio-
logical jurisprudence" '. 9 He showed no great interest in questions
relating to the definition of 'law', the nature of sovereignty, the
province of jurisprudence, the relation between law and morals,
and so on. In respect of analysis and refinement of legal concepts,
far from reacting against the Austinian tradition, Corbin, follow-
ing Hohfeld, worked vigorously within it. But his chief preoccupa-
tion was at quite a different level : he was worried by the teaching
methods and barely articulated assumptions of his teachers and
early colleagues; with the almost schizophrenic way in which
practising lawyers could talk about 'the law' in one way and set
about handling actual problems in a manner which seemed to be
largely unconnected with their talk; with the difference between
the orthodox view of the judge's role, as held by nearly all
lawyers and judges and the general public, and the actual function
that judges seemed to him to be performing; and, to a lesser ex-
tent, with the occasional failure of judges' opinions to explain or
justify their actual decisions. In other words, he was primarily
concerned about a gap between 'theory' and 'practice'. But the
'theory' involved was not the articulate and comparatively sophis-
ticated jurisprudence of Austin and Holland, but the primitive
and barely articulated assumptions of judges, practitioners and
laymen. The impetus to develop his own theory did not come
from a detached philosophical puzzlement about certain abstract
questions concerning the nature of law; it came instead from a
30 KARL LLEWELLYN AND THE REALIST MOVEMENT

concern to develop a method in teaching and in writing which

would minimize the dichotomy of which he was so acutely aware.
Thus, like Langdell, Corbin was first stimulated largely by peda-
gogical problems to develop a theory of law and of legal educa-
tion. Never satisfied with the conclusions of others, he began to
work out his own approach by trial and error in the classroom,
and gradually he evolved a theory to support it. Corbin's educa-
tional approach was similar to Langdell's in many respects (except
that Corbin made a more extensive use of problems), but their
ideas on law were significantly different. The fullest statements
of Corbin's theoretical position are to be found in two papers that
were separated by almost exactly fifty years. In 1913 an essay
entitled 'The Law and the Judges' was published in the Yale
Review, a 'lay' journal.10 In 1964, in his 'final legal writing',
entitled 'Sixty-Eight Years at Law', he restated his 'major conclu-
sions as to legal education and the nature and growth of law' .11
The ideas and orientation of the two papers are essentially the
same and there is no evidence of a radical shift in Corbin's views
during the intervening period. This is not surprising, for Corbin
is a striking example of someone who fashioned for himself a basic
working theory at an early stage and thereafter devoted himself
single-mindedly to detailed work in a field of substantive law.
Corbin will be remembered as one of the greatest of contract
scholars and much of his greatness lies in the consistency, patience
and rigour with which he approached his chosen field of special-
ization.12
'The Law and the Judges' is a curiously eloquent and compact
paper. There are echoes of Holmes, Gray and Sumner; there are
also traces of the theory of evolution. However, the paper as a
whole is a forthright statement of Corbin's own views. The main
topic is 'the exact part played by the judge in our social system'.
There had recently been a good deal of public controversy about
the position of judges. In particular it has been suggested that
judicial decisions should be subject to recall by the voters. Corbin,
in opposing this suggestion, directs his argument to two main
conclusions : first that judges have a discretion to make law in
individual cases and should accordingly be both open to criticism
and ultimately accountable for their decisions; secondly, that the
wise exercise of judicial discretion involves acting in accordance
with the sittlichkeit of the time, a term which Corbin seemingly
 CORBIN'S YALE, 1897-1918 31
equated with the prevailing sense of justice and the mores of a
community.18 The paper ends with a statement which bears a
striking resemblance to a controversial passage in Llewellyn's
The Common Law Tradition, which was published more than
forty years later:
That judge is just and wise who draws from the weltering mass the principle
actually immanent therein and declares it as the law. This has always been
the judicial function in all countries, and for its performance the judge must
bear the responsibility. u
Like Holmes' 'Path of the Law', Corbin's paper is pregnant with
both suggestive and controversial statements. 15 For present pur-
poses, however, three themes are of particular relevance. The first
is the great emphasis placed by Corbin on the continuous process
of change:
For the growth of the law is an evolutionary process. Its principles consist of
such generalizations as may tentatively be made from a vast number of
individual instances. The instances change as man and society change, with
the climate, with the growth of population, with the progress of invention,
with social selection. And as the instances change, so must our generaliza-
tions change. So must our idea of justice change. 18
The second theme, implicit in the last passage, is that all proposi-
tions of law must be viewed as 'tentative working rules' arrived at
inductively by the examination of the facts and results of all the
relevant cases. As each decision is handed down the old formula-
tion of a rule must be re-examined to see if it fits the facts and
results of the new case. If it does not, then the relevant cases must
be re-examined and a new 'tentative working rule' must be formu-
lated. Fifty years later, in a revealing passage, Corbin articulated
the basis for this approach. After stating that as a student he had
found reading 'Hornbooks' (students' text-books) 'a total waste of
time', he continued:
I have never been able to memorize, and parrot-like to repeat, the 'rules'
and doctrines and generalizations of men, often (if not always) based on
quite insufficient life experience and inaccurate observation, but solemnly
repeated down the corridors of time. Templin had put me through a book
entitled Inductive Logic by that clearest minded of men, John Stuart Mill.
It was only after beginning the teaching of'law' that I fully realized that the
meaning and value of any 'rule' or generalization are wholly dependent on
the specific items of life experience and observation on which they are
based.17
32 KARL LLEWELLYN AND THE REALIST MOVEMENT

It is important to note here that Corbin's sceptical approach to

legal rules formulated by others did not involve commitment to
the idea that rules are a 'myth' or are unimportant: '"Pared-down
principles" there must of course be- "the law"; but it seldom
struck me that the ones I found in print were the ones.' 18
A great deal of unnecessary controversy could have been avoided
if critics of 'realism' had grasped the distinction between sceptic-
ism about textbook formulations of legal rules and scepticism
about the very existence of any rules or principles. The term 'rule-
scepticism', coined by Frank, and indiscriminately applied by critics
to Llewellyn and other realists, obscures this important distinc-
tion.19
A third theme in Corbin's paper, reiterated in his later writings
on contract, and subsequently taken up and elaborated by Karl
Llewellyn, is the idea that it is as important to study the facts of
cases as to study legal doctrines. 20 Judicial decisions, Corbin sug-
gested, are influenced by the manner in which the facts are per-
ceived as much as by legal authorities; the good lawyer must be
able to interpret the facts of his case in terms of the conditions and
values of contemporary society; in this he can learn more from the
law reports, as 'a mighty storehouse of facts', than from a lifetime
of experience; 21 even in arguing a point of law a good lawyer
studies the 'facts' of a case with great care. Corbin used Chancellor
Kent as an example of a great judge who adopted this approach:
He further says that in deciding cases his practice was first to make himself
perfectly and accurately master of the facts. Then he says: 'I was master of
the cause and ready to decide it. I saw where justice lay and the moral
sense decided the cause half the time, and I then sat down to search the
authorities until I had exhausted my books, and I might once and a while be
embarrassed by a technical rule, but I most always found principles suited
to my views of the case. u
Corbin's 'Law and the Judges' is of historical interest as one of
the earliest realist writings. To the modern reader it will seem, in
some respects at least, dogmatic and unsophisticated and on a
number of points it is clearly vulnerable to some of the criticisms
that were later levelled indiscriminately at realism in general. The
fact that it was addressed to a lay audience provides only a partial
justification for its main defect, that of oversimplification. On
certain points Corbin takes an extreme position by any standards,
but people today would not be shocked, as was Professor Simeon
 CORBIN'S YALE, 1897-1918 33
Baldwin, by assertions that judges make law or that the decisions
of judges should be freely and publicly criticized in the same
manner as those of other re~ponsible decision-makers. 23 But in
1913 such ideas were considered ,heretical; the paper met with a
frigid reception from Corbin's colleagues and from practising
members of the legal profession, one o:utraged reader going so far
as to suggest that he should be dismissed from Yale because of it. 2 ._
Corbin's theory of law, as set out in 'The Law and the Judges\
reveals some sharp divergences from that of Langdell. But there
were also important similarities. Both men were attracted by 'the
scientific analogy', but Langdell's 'theological' conception of science
contrasts sharply with Corbin's scepticism of unproven generaliza-
tions and his Social Darwinism. Their conceptions of 'induction'
were also different. Both men saw the growth of law as an
evolutionary process, but Corbin placed much greater emphasis on
change as a continuing and vital process which needs to be always
in the forefront of lawyers' minds. Both men were specialists in
contract and they shared a perspective on law, that made courts
the central focus of attention. Corbin was essentially a case-law
scholar. He loved the law reports and he devoted the greater part
of his energies to reading and analyzing them. He neither under-
took nor exhibited much interest in .empirical research. In this
respect he was not very different frqm other scholars, like Langdell,
who relied almost exclusively on appellate decisions for their
source-material and who believed that all the law is to be found in
printed books. Corbin may ·not have assented intellectually to the
latter sentiment, but he tended to behave as if he did. But Corbin's
manner of reading cases and the use he made of them were
significantly different from Langdell's, as is illustrated by his
emphatic rejection of the suggestion that 'the vast majority are
useless, and worse than useless, for any purpose of systematic
study'. 26
On education matters the ideas of the two men were . very
similar. Corbin devised his own version of case-method teaching
before he learned in any detail about Langdell's innovations at
Harvard. Later, Corbin was largely responsible for breaking d9wn
resistance to the 'case method' at Yale. On the administrative side
he played a leading role in pressing policies which ensured that
the institution was built up on sound lines: the quality of the
students was improved by the steady raising of admission stan-
34 KARL LLEWELLYN AND THE REALIST MOVEMENT

dards and, later, by steady increase of competition for places.

The library was expanded and a cadre of full-time teachers was
recruited; a determined talent hunt secured the services of some
outstanding individuals, including ex-President William Howard
Taft (1913), Wesley Newcomb Hohfeld (1914), Walter Wheeler
Cook and Thomas Swan (1916), as Dean. In so far as Yale Law
School's ascent to eminence was due to the determined efforts to
improve the quality of the students, staff and library, the formula
for success was essentially the same as Harvard's. 26 It was mainly in
respect of the prevailing attitude to law that the approaches of
the two schools differed significantly.

The appointment of Hohfeld27 in 1914 marked the next signifi-

cant departure. In 1913 a hitherto unknown professor at
Stanford, Hohfeld submitted to the Yale Law Journal an article
entitled 'Some Fundamental Conceptions as Applied in Judicial
Reasoning'. The editors consulted Corbin, who was so impressed
that he not only advised publication but also pressed for Hoh-
feld's appointment to the Yale faculty. An offer was made and,
according to Corbin, Hohfeld put his analysis of 'rights' to good
use in negotiating terms with Yale and Stanford. 26
In only four years at Yale, which ended in his death at the age
of thirty-eight in October 1918, Hohfeld generated an extra-
ordinary intellectual excitement which carried over for a consider-
able time after his death. Indeed, for many law teachers in other
law schools the image of Yale Law School from about 1914 until
the mid-xg2os was largely associated with 'Hohfeldian analysis'.
Today Hohfeld is mainly remembered for his analysis of 'legal
right' and related concepts. Hohfeld showed that the term 'legal
right' was used by judges in at least four different senses and he
outlined a scheme of eight linked jural 'correlatives' and 'oppo-
sites' which, he claimed, could be called 'the lowest common
denominators of the law ... the lowest generic conceptions to
which any and all "legal quantities" may be reduced'. 29
While Hohfeld raised some important questions and made
effective use of his analytical tools to show up confusions and
inadequacies in judicial reasoning, and collected together some
excellent illustrative material, it is now widely accepted that his
analysis was less original and has a less widespread utility than
was once thought, and that he failed to substantiate his claims
 CORBIN'S YALE, I8g7-1918 35
that reducing all legal r.elations to their lowest common denomin-
ators would make it possible to discuss common principles of
justice and policy underlying the various jural problems involved
and that it would increase 'one's perception of fundamental unity
and harmony in law'. so But in the years following the publica-
tion of his first article in the Yale Law Journal Hohfeld's analysis
and its variants became fashionable, in some quarters almost to
the point of obsession. In particular, it made a profound impres-
sion on three leading realists, Corbin, Cook and Llewellyn.
Mter Hohfeld's death Cook and Corbin played a leading part in
keeping alive -an interest in his ideas. Both adopted his analysis as
a prominent part of their intellectual equipment; Cook edited
Hohfeld's collected papers and the mark of Hohfeld is apparent in
much of his own work. Corbin published several discussions about
Hohfeld's analysis of 'right', he made repeated reference to it in his
writings on contract, and he persuaded the authors of the Restate-
ment of Contracts to adopt it. 81 He continued to use Hohfeld's
concepts, although less obtrusively, in his later years. This, persis-
tence is understandable, for there is some truth in the saying that
this type of analysis has more value in its application to contract
than to most other branches of law. Karl Llewellyn was a student
of Hohfeld's at Yale and, at the time, he was one of his most ardent
admirers. It cannot be claimed that Hohfeld was entirely success-
ful in training this particular pupil always to be disciplined in his
use of language-and later Llewellyn was to be quite critical of his
former teacher-but Llewellyn too made explicit and effective use
of Hohfeldian analysis in his writings on sales, and later, less
openly, in his work on the Uniform Commercial Code. 32
The impact made by Hohfeld on these early realists is of
particular significance because it established an important link
between the English tradition of analytical jurisprudence and
American legal realism. Hohfeld built on the work of English
analytical jurists such as Holland, Markby, Salmond and above all
Austin, whom he first read while he was an undergraduate at
college. 83 In style he was very much in the Austinian tradition,
and at first sight it may seem almost paradoxical that a disciple
of Austin should have provided the early realists with some of the
most powerful weapons for their onslaught on 'the formalism' and
'conceptualism' for which Austin is often blamed. 34
The paradox is only apparent, for there is no necessary incom-
36 KARL LLEWELLYN AND THE REALIST MOVEMENT

patibility between rigorous analysis of concepts and a realist

approach. Hohfeld himself was by no means a blinkered formal-
ist. He considered his articles on 'fundamental legal conceptions'
to be only a beginning: at the time of his death he appears to
have had plans for the publication of works on trusts, evidence
and conflicts of laws as well as a longer work on Fundamental
Legal Conceptions. 85 It is also clear from his address before the
Association of American Law Schools in 1914 on 'A Vital School
of Jurisprudence and Law' that he thought that analysis of concepts
should only be part of a much more broadly conceived approach
to jurisprudence. 86 Indeed, his paper can be read as an indirect
attack on the narrow approach to law and to legal education
which dominated most of the leading law schools and which had
become further entrenched by the spread of Langdell's gospel to
other schools.
Corbin and Cook used analytical techniques to challenge a
picture of American law as an integrated system of abstract,
relatively static, legal principles which were applied by the courts
to decide cases. The object of their scepticism was an orthodoxy
which was more firmly entrenched in the assumptions of
academics, judges and practitioners when they talked or wrote
about law, than in the articulated theories of leading jurists. And
Corbin, in particular, launched his main attack in the context of
discussion of specific legal concepts and doctrines. It is on the
basis of his writings on contract that his achievements and limita-
tions should be assessed. In these writings are displayed an aware-
ness of semantic problems, a scepticism of broad formulations of
principle, and an insistence on patient, minute and precise analy-
sis of legal relations. For all of these qualities it is reasonable to
give Hohfeld at least part of the credit. Cook's use of Hohfeld, it
will be seen, was somewhat different: in his teaching the main
target of attack was the deductive model of judicial decision-
making and in general his approach was more ruthlessly icono-
clastic and less constructive than Corbin's. But for both men the
techniques of conceptual analysis were their main weapon in
their attack on 'formalism'.
It is worth making one final point about Hohfeld. As an under-
grad{Jate he had studied chemistry and it has been pointed out
that his analysis of fundamental legal conceptions bears some
resemblance to chemical analysis in that it seeks to break down its
 CORBIN'S YALE, 1897-1918 37
subject-matter into constituent elements.37 Hohfeld did from
time to time use metaphors derived from the physical sciences and
mathematics (for instance, his 'homely metaphor' about the
lowest common denominators of the law), but it is only fair to add
that he appears to have taken 'the scientific analogy' less seriously
than some of his contemporaries.

Much more than Hohfeld and Corbin, Walter Wheeler Cook

approached law with an outlook and habits of mind conditioned
by training as a physical scientist. 88 Before he ever studied law he
had served as. an assistant in mathematics at Columbia and had
read for a doctorate in physics at Berlin. Throughout his long
career as a legal scholar he wandered restlessly from university
to university, leaving behind him the reputation of being one of
the most brilliant law teachers and one of the most difficult
colleagues of his generation.
Between 1916 and 1933, as he moved from Chicago to Yale to
Columbia, back to Yale again, and then to Johns Hopkins, Cook
was one of the most controversial figures in the realist movement.
His temperament and his background combined to make him
something of a misfit among American law teachers. He was, for
instance, the first person since x8gx without any experience of
legal practice to be appointed to the Columbia faculty. 89 He was
completely out of sympathy with the vocational orientation of the
great majority of his colleagues and he subscribed to a rather
dogmatic version of the conception of a university as a community
of scholars devoted to the scientific advancement of knowledge. It
is said that 'he was extremely sensitive and shy, and he assumed as
protective armour an attitude of cold and austere intellectuality
that many people found repellent. Like most men with a passion for
accurate thinking, he seemed to believe that no one thought
accurately but himself.'• 0
Throughout his career Cook's overriding concern was the
contrast between the methods of physical scientists and the
methods of lawyers of all types. The road to progress was through
the application of 'truly scientific methods' to law. 41 Cook took
'the scientific analogy' far more seriously than his predecessors
among American jurists. He read widely in the philosophy of
science and, in his later years, wrote a number of papers on
scientific method in law in which he developed a theory which
38 KARL LLEWELLYN AND THE REALIST MOVEMENT

drew heavily on the ideas of John Dewey. His own conclusion was
that 'the same logic of inquiry used in physics and chemistry will
yield useful results if applied in all fields in which intelligent
inquiry can be carried on'. 42 His starting-point was a teleological
conception of law, which could hardly be claimed as original, but
which provided the basis for challenging the assumption that all
the materials of legal science are available in printed books:
Underlying any scientific study of the law, it is submitted, will lie one
fundamental postulate, viz., that human laws are devices, tools which
society uses as one of its methods to regulate human conduct and to promote
those types of it which are regarded as desirable. If so, it follows that the
worth or value of a given rule of law can be determined only by finding out
how it works, that is, by ascertaining so far as that can be done, whether it
promotes or retards the attainment of desired ends. If this is to be done,
quite clearly we must know what at any given period these ends are and
also whether the means selected, the given rules of law, are indeed adapted
to securing them. u
It will be seen later that Cook played a leading part in the
movement to develop scientific empirical research into legal pro-
cesses. At first, however, he used his understanding of modern
conceptions of science as a base from which to attack the
approaches of other jurists. Cook took as his main target the idea
that the common law consists of 'a body of scientific principle'
which can be discovered by 'induction' from decided cases and
from which decisions in new cases can be 'deduced'.u Cook
attributed this idea to his 'betes noires' in conflicts of laws, Story
and Beale, and the editors of the Restatement of Conflicts of
Laws, but he added that 'essentially the same ideas underlie
nearly all the teaching in our law schools'.'~ For many years to
destroy this mechanical model of jurisprudence seemed to be his
primary aim. 46 Thus he dazzled his students at Yale with a brill-
iant display of dialectics as he set out to show, case by case, that
the results did not necessarily follow from the judges' articulated
premises and that traditional formulations of the same legal
doctrine could be used to support opposing conclusions. Cook was
probably unfair in attributing so simplistic a view to his adver-
saries, and he tended to spoil his case, when arguing at the general
level, by choosing too crude a target to attack. But he had unusual
powers of analysis and his detailed criticisms of specific doctrines
were often devastating, the most notable example being his
 CORBIN'S YALE, 1897-1918 39
critique of the territorial theory of the conflict of laws, of which
Story and Beale were the leading proponents. 41
For much of his career Cook Wli'S content to criticise the accep-
ted 'legal logic' from within, using analytical techniques to show
up ambiguities and confusions in the reasoning of judges and of
other jurists. Here he followed his adversaries in concentrating
almost exclusively on decisions of appellate courts. This part of
his work has much in common with that of Corbin: acute distrust
of other people's generalizations and of broadly stated legal
principles, enthusiasm for Hohfeld's analytical scheme, scepticism
of claims for 'certainty' in law, and a concern to investigate and
bring into the open the policy considerations underlying particular
legal doctrines and judicial decisions. However, he lacked Corbin's
professional orientation,48 and his dialectical style tended to give
the impression that he was only capable of 'destructive' analysis.
Thus some of those who accepted his critique of the territorial
theory of conflicts, found his work 'sterile' in his failure to provide
an alternative theory as a basis for systematic development ;49
along with other realists he was sometimes accused of believing
that 'talk of rules is a myth'&o and at least once he was accused
of suggesting that one cannot draw any generalizations. at Cook
strongly denied all these charges, &2 but there is some truth in the
suggestion that he was at his most brilliant in attacking the
generalizations of others, without always suggesting a definite
alternative.
At some point, probably soon after he left Yale in 1919, Cook
began to emphasize the need for empirical research into the actual
operation of the legal system. This is not marked by an abrupt
break in his own approach, but it introduced an important new
element into legal realism. as The development is strikingly illus-
trated by Cook's reviews of successive editions of Williston's
treatise on The Law of Contracts. On both occasions Cook paid
tribute to Williston's industry and learning, but he found the
treatise profoundly unsatisfying. In his review of the first edition
he sought to rationalize his dissatisfaction by arguing that
Williston repeatedly fell into error because of his failure to adopt
Hohfeld's analysis of fundamental legal conceptions.a 4 In his
review of the second edition, almost twenty years later, Cook's
dissatisfaction remained, but he shifted his ground of attack, this
time emphasizing the point that Williston's treatment was
40 KARL LLEWELLYN AND THE REALIST MOVEMENT

divorced from 'empirical reality'. 1111 The implications of this shift

will become apparent when developments at Columbia Law
School in the 1920s are considered.
As a jurist Cook was neither particularly original nor profound.
His principal contribution was to explore at length the implica-
tions of 'the scientific analogy' for law in the light of contem-
porary ideas about the physical sciences. Many of his own ideas
were derivative, for he drew heavily on the work of Holmes,
Dewey, Hohfeld and writers on the philosophy of science. More-
over, there are some serious weaknesses in his attempts to transfer
scientific empiricism to law. His place as an important figure in
the history of realism is based on three main claims : first, in his
work in conflicts, and to a lesser extent in equity, he showed up
convincingly the inadequacies of some of the most widely accepted
theories and suggested that their fault lay essentially in some
fundamental methodological misconceptions. Secondly, Cook's
theory of an empirical science of law, although rather crude,
provided the basis for the first serious attempt to break away
from narrow, library-bound conceptions of the proper scope and
methods of research by legal scholars. 116 Finally, Cook played a
leading part in trying to apply this theory in practice, first at
Columbia and subsequently at Johns Hopkins.
Hohfeld died/in 1918 and in the following year Cook moved to
Columbia, tempted by the twin attractions of a higher salary and
a distinguished Dean, Harlan Fiske Stone. 117 During the next ten
years Yale Law School continued to grow in stature as an institu-
tion, but the movement for reform lost much of its impetus. There
is little doubt that Columbia was the main centre of the realist
ferment between 1920 and 1928. Accordingly, in the next phase
the scene shifts to Columbia, but we shall later return briefly to
Yale to review developments there.
3
Columbia in the 192o's

Between 1919 and 1933 Columbia was the focal point of the
ferment that marked the next stage in the history of the realist
movement. Although new ideas were being aired in other law
schools there was a greater concentration of energetic and radical
jurists at Columbia than anywhere else; furthermore the implica-
tions of some of the new ideas that were being bandied about
were given focus by becoming the subject of sharp controversy
both within and outside the law school. A series of spectacular
events, notably the curriculum discussions of 1926-8, the deanship
crisis of 1928, and Llewellyn's debate with Pound in 1931, drama-
tized the jurisprudential issues and helped to make them a matter
of public concern among academic and practising lawyers. It was
during this period that the existence of a new movement began
to be recognized and that, almost at the same time as it became
visible, the movement split in two.
The story can be said to begin with the appointment of Walter
Wheeler Cook to the Columbia faculty in 1919. At the time
Columbia Law School was considered by many to be second only
to Harvard in prestige. It was larger than the Yale Law School
and had a longer and more distinguished tradition. The famous
legal scholar James Kent had been Professor of Law at Columbia
from 1793 to 1797 and from 1823 to 1846. 2 He had added
distinction to the university, but had done little to develop the law
school as an institution. However, from the time of the appoint-
ment of Theodore Dwight as Professor and Dean in 1858 the
school had been blessed with a succession of outstanding person-
alities who had built up a fine tradition. Under Dwight the battle
to establish the respectability of university legal education had
been won relatively early; in 1891 Keener, a pupil of Langdell's,
had successfully introduced the case method and thereafter there
42 KARL LLEWELLYN AND THE REALIST MOVEMENT

had been a steady increase in the standards of instruction and the

quality of the students. From Igio the school had continued to
prosper under the distinguished leadership of Harlan Fiske Stone,
a man who combined a strong professional orientation with a
broad and progressive vision of the educational needs of intend-
ing lawyers.
At the time of Cook's arrival the school was not radically
different from the Langdellian model, but it was not a mere carbon
copy of Harvard. Columbia had been the first American univer-
sity to establish chairs of international law and diplomacy (I8gi)
and legislation (I9I7), there was an established tradition of close
contact with the School of Political Science, and in Stone's
public pronouncements there were signs of awareness of a need
for a broad approach to legal study. However, in I9I9 the
Columbia curriculum was fairly conventional and there was little
evidence of any great demand for innovation.
The arrival of Cook was soon to change that, for he joined
forces with William Underhill Moore in attempting to introduce
a new approach to law teaching at Columbia. Their first major
coup was to secure the appointment of Herman Oliphant. This
was particularly significant, for shortly after Oliphant's arrival
Cook himself returned to Yale, and it was Moore and Oliphant
who became the key figures in the events that followed. William
Underhill Moore (I879-I949) was educated at Columbia College
and Columbia Law School.8 His family included some disting-
uished lawyers and from an early age he was exposed to the
atmosphere of legal practice. After practising in New York from
I902 to I908 he took up law teaching, first at Kansas and then
subsequently at the University of Wisconsin and the University of
Chicago. Mter eight years of teaching in the mid-west Moore
returned to Columbia Law School in I 9 I 6, where he remained
for thirteen years.
At the time of his return Moore had a growing reputation as
a commercial lawyer, especially in the field of bills and notes. He
was also known to be an exceptionally demanding teacher, highly
individualistic and impatient of any signs of intellectual slop-
piness. Although he was reputed to be something of a polymath,
who read avidly in many areas of the physical and social sciences,
in the first years after his return to Columbia few people could
have anticipated the almost fanatical espousal of 'scientific
 COLUMBIA IN THE I 9208 43
research' which was ultimately to mark him as the most un-
compromising, and most 'extreme', of legal scientists. Rather, his
teaching at this stage was distinguished as much as anything by
analytical exactness and by his refusal to allow the traditional
classification of fields of law to obscure the way in which problems
presented themselves in legal practice. Thus, it is reported, when
Moore was teaching, 'a class in sales is likely to consider and dis-
cuss problems conventionally included in mortgages, suretyship or
insurance'. 4 His research during the first half of his career mainly
consisted in the painstaking accumulation of notes on thousands
of cases on negotiable instruments and allied topics. Thus up to
about 1922 Moore appeared to be a tough minded commercial
lawyer, with a practical bias, widely read, but sceptical and scorn-
ful of vague theorizing.
At some stage during his time as professor at Columbia he
became converted to a different approach. It is not clear how
suddenly this happened, nor to what extent it was due to his
association with Cook and Oliphant, or to his espousal of the
behaviourist psychology of Watson,5 or to a combination of these
and other factors. When the break came it appears to have been
sharp and complete. The story is told that a student one day
found Moore in his office 'cursing most frightfully' as he threw out
the contents of his bulging filing cabinets. On being asked what he
was doing, he is reported as replying: 'It's my life work, all the
notes I have taken in a lifetime of research-and it's all wrong.' 8
Having concluded that he had been proceeding on false premisses,
Moore decided to start afresh and thereafter, for the rest of his
career, he concentrated on 'pure' research into the effects of laws
on human behaviour. 7 Having started as a relatively conventional
academic lawyer, he became, after his conversion, the most un-
compromising of the 'scientists'.
Moore's ideas on classification had a direct bearing on events
at Columbia in the I920s. His refusal, in his teaching, to be
confined within the boundaries of conventionally defined fields of
law was merely one aspect of his more general scepticism of the
adequacy of existing legal concepts for categorizing in a mean-
ingful way the 'facts' of reported cases. Instead he advocated
the search for 'significant type fact situations' as a basis for
classifying circumstances giving rise to legal problems. This idea
was taken up by others, especially Oliphant, when the attempt
44 KARL LLEWELLYN AND THE REALIST MOVEMENT

was made at Columbia to reclassify the whole curriculum along

functional lines. 8 The same idea probably stimulated two of
Llewellyn's most important ideas-the quest for narrower cate-
gories9 and the concept of 'situation sense' ,10
Moore's friend and ally, Herman Oliphant (t884-1939)
embarked on the study of law relatively late. 11 Until the age of
twenty-seven he had been teaching English at a small college in
Indiana. A promising career in philology was beginning to take
shape when, at some considerable personal sacrifice, he decided to
change direction and enrolled as a law student in the University of
Chicago in 191 J. He gave a revealing summary of his intellectual
concerns at an AALS symposium in 1928:
I left Comparative Philology and entered Law School, hoping thereby to
get in touch with something more closely allied to life. I completed the Law
School course with a pretty keen feeling as to law's detachment from life.
At that time, in I g I 4, as I emerged from the confusion of an undergraduate
course of three years oflaw, I heard one voice that sounded a clear note in
that confusion, and that was Dean Pound's counsel that the supreme need
of the situation was socializing our jurisprudence.
I have been trying ever since that time to address my spare time and
thinking to devising ways and means for making that aspiration a reality. 11
Oliphant was appointed as an instructor in the Chicago Law
School immediately on graduation and it was only at the end of
his career, after he had made his main academic contribution, that
he engaged in full-time practice (as General Counsel for the
Department of Treasury 1935-g). Like Cook, who also had never
practised law, Oliphant was out of sympathy with the vocational
emphasis of American legal education. However, unlike Cook and
Corbin, he had a literary rather than a scientific background;
nevertheless, he espoused the 'scientific analogy' just as enthus-
iastically, and during the 1920s he was one of the most articulate
and vehement spokesmen for the study of law as a social science.
It is interesting to note that, like so many 'realists', Oliphant's
principal fields of specialization were contracts and commercial
law.
Oliphant was a lively teacher and an able man, and some of his
writings are still quoted, notably an article on 'A Return to Stare
Decisis' ;18 but he was perhaps not in the same intellectual class as
Cook or Underhill Moore, while sharing their tendency to over-
statement and extremism. His principal significance in the history
 COLUMBIA IN THE I920S 45
of realism is as a collaborator, and acolyte, of Walter Wheeler
Cook, and as the chief protagonist of the latter's ideas during the
Great Debate at Columbia in the I920s. It is to these events that
we now turn.
It was the aim of Cook and Moore to make the approach to law
at Columbia more 'scientific' and to bring about a closer integra-
tion between law and the social ~ciences. They were less than
tactful in their first attempts at innovation. It is said that they
used 'aggressive tactics' to secure the appointment of Herman
Oliphant in I922 and they were suspected of conspiring to recruit
a clique of sympathizers and of trying to get hold of certain key
courses, such as Personal Property, the better to convert their
students. 14 Cook was an abrasive character, and after a number of
clashes with Dean Stone and other colleagues he resigned in I922
and returned to Yale at an even higher salary. However, Oliphant
immediately took over where Cook left off and during the next six
years he promoted with rather more tact, but no less energy, ideas
almost identical to those of Cook.
For a time 'the radicals' found a powerful ally in Nicholas
Murray Butler, President of Columbia. In his report for I922
Butler included a remarkable passage on legal education which
looked very much like a thinly veiled attack on the policies of
Dean Stone. 1 G This may well have contributed to Stone's decision
to resign a year later. In his report Butler criticized American law
schools generally for being too narrow and technical in their
approach and for having failed to cultivate more vigorously rela-
tions between law, ethics and social science. He suggested that
there was an urgent need for a thoroughgoing critical examination
of all aspects of legal education. This must have given encourage-
ment to Oliphant and Moore. A year after his arrival Oliphant
prepared a plan for far-reaching reforms of the law school, in
which he argued that the institution should become a community
of scholars concentrating on research into law as an aspect of
social organization. 16 He sent a copy to Butler, who advised him
to postpone formal action until the time was more propitious,
but meanwhile to develop and promote his ideas by informal
means. Butler dropped a broad hint that Oliphant might in due
course become Dean. 17 Oliphant seems to have followed Butler's
advice, with some success.
In 1922-3 Oliphant and Dowling gave experimental courses,
46 KARL LLEWELLYN AND THE REALIST MOVEMENT

which excited some interest among their colleagues, not least

because they cut across the traditional boundaries of subjects.
Oliphant's course on illegal combinations, which was soon re-
christened trade regulation, threatened to take over a substantial
part of what was normally subsumed under torts. It included, for
instance, such topics as intimidation, inducing breach of contract,
and disparagement of goods; the course also trespassed on several
other traditional courses, especially contract, corporations and
criminal law. Dowling's course on industrial relations also cut
across traditional boundaries, for it overlapped with constitutional
law, contract, torts, agency and equity, in a fashion now familiar
to students of labour law. These courses in time became a regular
part of the curriculum of most law schools. In fact 'neither course
originated in Columbia's hotbed of discontent',18 for in this
instance Harvard had taken the lead. At Columbia they attracted
attention partly because they were recognized as filling important
gaps, but also because of Oliphant's response to charges of tres-
pass. Problems of overlapping are perennial in discussions of
curriculum, but Oliphant added a new dimension by maintain-
ing that it was the traditional courses that need revision on the
basis of a completely reconstituted scheme of classification along
functional lines. By the time that the next major move towards
reform was taken a fair number of Oliphant's colleagues were at
least prepared to think seriously about ways of reorganizing the
subject-matter of legal studies.
During the period 1923-6 Oliphant and Moore no doubt found
that most of their colleagues did not fully share their ideas; they
were supported by some younger members of faculty, notably
Karl Llewellyn, Hessel Yntema and William 0. Douglas, but others
were, for the most part, sceptical. However, no concerted opposi-
tion to their efforts developed at this stage. Stone, Jervey and
Smith, who occupied the deanship in succession, were all much
more professionally oriented than Cook, Moore and Oliphant, but
none of them was unsympathetic to innovation nor to attempts to
try to broaden the curriculum. Their attitude was epitomized by
Smith, who in a letter to Stone in 1921 had written: 'Their radical
ideas constitute an excellent tonic for the intellectual liver, but as
a steady diet they are simply impossible.' 19
In the spring of 1926 the Columbia faculty acted on President
Butler's suggestion that a critical re-examination of legal educa-
 COLUMBIA IN THE I 920S 47
tion should be undertaken. The exercise was conducted with ex-
ceptional enthusiasm over a period of two years. Forty years later it
could probably still be described, in Currie's words, as 'the most
comprehensive and searching investigation of law school objec-
tives and methods that has ever been undertaken' .20 The whole
faculty participated. Approximately a hundred memoranda, some
substantial, were prepared and discussed and thousands of man-
hours were spent in committee. Differences were temporarily
patched up and nearly every member of the faculty devoted a
considerable amount of time to the exercise. Leon C. Marshall, a
distinguished economist and an expert on business education,
came from the University of Chicago as visiting professor in I927
specifically to act as chairman. Marshall had been a colleague of
Oliphant at Chicago and in I923 Oliphant had dedicated his
Cases on Trade Regulation to him. It is some indication of the
spirit in which the discussions began that it was Young B. Smith,
a moderate, sceptical of Oliphant's enthusiasms, who formally
proposed that an economist, such as Marshall, should be invited
to assist in the discussions. This proposal was made in a long
statement in which Smith outlined the case for revising the whole
curriculum in order to achieve a closer integration between law
and the other social sciences, especially economics. 21
Although Smith made the first formal moves at a faculty meet-
ing, undoubtedly Oliphant was the chief architect of the enter-
prise. He had pressed for reform as early as 1923, his course on
trade regulation and his general ideas had stimulated, without
always converting, many of his colleagues; together with Moore
and Marshall, he played a leading part in the discussions. At
the end he was relieved of all his other duties for the spring
session of Ig28 in order to prepare a report.
The chief value of the discussions lies in their concreteness. A
genuine attempt was made to think through in considerable detail
the problems of reorienting each part of the curriculum. At an
early stage in the discussions a working scheme of classification
was agreed. 22 Substantive law was shared out between three
major categories: political relations, business relations and
familial relations. A fourth category, law administration, covered,
inter alia, the courts and other dispute-settlement mechanisms,
and the rules of procedure and evidence. This scheme seems to
have been largely the brain child of Oliphant. The thinking
48 KARL LLEWELLYN AND THE REALIST MOVEMENT

behind it is illuminating. Dissatisfaction with the existing divisions

of law was the starting point: contracts, torts, equity, agency
and corporations, for example, were open to a number of objec-
tions:
Any classification of law requires abstraction, but our present classification
embodies unnecessarily broad abstractions. Many of them are antiquated
partly because they were made in terms of a procedural set-up long since
obsolete and partly because made prior to the industrial and financial
revolutions and prior to the beginning of the present marketing revolution.
Our present classification is pretty much out of touch with life. Among the
things which we need to do is to come to study law from points of view more
intimate than the abstractions of our present classifications permit and more
significant than their age makes possible. 23
Furthermore, the old divisions tended to obscure the social pur-
poses of rules of law and also to put up unnecessary barriers
between lawyers and social scientists. They further promoted un-
reality by sharpening the dichotomy between substantive law and
procedure, so that legal problems tended to be considered in isola-
tion from the processes of adjudication and enforcement.
The problem of finding an alternative basis for c;lassification
was well stated by Oliphant:
[T]he practical effects of rules of law upon life can be thrown into sharper
relief, by classifying substantive law in categories closely related to modem
social life. But social living has an indefinite number of aspects. It can be
thought of, for example, as involving a homogeneous mass of human
relations, human activities, human motives, human ends, etc. If law is to
be classified in terms of the life which it affects, what aspects of that life
shall be chosen as the bases of classification? 24
Oliphant's answer is interesting. Because a prime need was to
make use of the skills and findings of the social sciences, the most
useful division for this purpose would be one which corresponded
with areas of specialization in the social sciences. This line of
argument is suggestive, even if the final scheme is a little disap-
pointing. The major division that was settled on was (I) business
relations, (2) familial relations, and (3) communal-political rela-
tions, roughly reflecting (I) political economy and business
economics, (2) sociology, and (3) political science. The fourth
category, law administration, served as something of a catch-all.
It may be pointed out that this exhausts neither the social sciences
nor the traditional subject-matter of legal studies. Moreover, in the
 COLUMBIA IN THE I920S 49

discussions and in Oliphant's report a disproportionate amount of

attention was devoted to business relations. This, according to
Currie, 'was attributable not to any hypothetical orientation of the
Columbia law school toward Wall Street, but to the undoubted
orientation of Marshall and Oliphant toward the University of
Chicago School of Business'. 25
The contrast between the old and the new scheme of classifica-
tion has sometimes been characterized as the replacement of 'legal'
by 'functional' concepts. Thus trade regulation, industrial rela-
tions, risk bearing, security, business units, the family and credit
have all at some time been described as 'functional'. It seems that
the term is not being used precisely, if it can be applied indiscrim-
inately to all these categories. For example 'security', 'trade
regulation' and 'risk bearing' can be said to relate directly to
functions (in the sense of social and economic purposes), but 'the
family' refers to an institution, which may be analysable in
functional terms, but is not itself a function. Conversely, equity-
of which Lasswell and McDougal later asked : 'What useful pur-
pose is served by putting this rag-bag of stuff between two
covers?' 26 -can be said to have originated principally in order to
perform a 'function', i.e. to mitigate the rigidities of the common
law. The answer is that 'functional' has sometimes been used
loosely in respect of categories in rather the same way that the
term 'non-legal' has been used in respect of materials. It normally
implies that the basis of classification is either the purposes which
a rule or collection of rules is meant to serve or else some socially
significant group of 'type-fact situations'. Since the purposes of
legal rules are almost infinite in number and since there are no
established criteria of social significance, 'functional' in this usage
is generally a rather vague term.
During the curriculum discussions much of the detailed work
was done by small committees. These for the most part reflected
the agreed general scheme of classification. For instance, a
committee on business relations was first established and this soon
recommended the subdivision of the area into marketing, business
organizations, labour relations and financial credit, with possible
further categories of risk-bearing and production. Subcommittees
were then instituted to deal with each of these topics, except
production. Individuals as well as committees and subcommittees
prepared memoranda, which were collated by Marshall and
50 KARL LLEWELLYN AND THE REALIST MOVEMENT

Oliphant. In the end it was thought worthwhile to give Oliphant

leave of absence to enable him to prepare a report for publication.
The end-product was Oliphant's Summary of Studies in Legal
Education, which remains to this day one of the most stimulating
published discussions on this complex subject. 21
Although the curriculum discussions foundered as a result of a
split between two factions, there was a basic consensus among the
participants about the general approach. Currie puts the matter as
follows:
The fundamental thesis which emerged was this: Since law is a means of
social control, it ought to be studied as such. Solutions to the problems of a
changing social order are not implicit in the rules and principles which are
formally elaborated on the basis of past decisions, to be evoked by merely
formal logical processes; and effective legal education cannot proceed in
disregard of this fact. If men are to be trained for intelligent and effective
participation in legal processes, and if law schools are to perform their
function of contributing through research to the improvement of law
administration, the formalism which confines the understanding and
criticism of law within limits fixed by history and authority must be
abandoned, and every available resource of knowledge and judgment must
be brought to the task.
A drastic retooling would be required to convert the facilities of legal
education to such an effort. Two basic requirements were announced to the
law school world with seismic effect: First, the formal categories of the law,
shaped by tradition and by accident, tend to obscure the social problems
with which law deals, the purpose which is the vital element of principle,
and the actual working of legal processes; they constitute a framework which
forces artificiality in perspective and development; they must be revised
along lines of correspondence with the types of human activity involved.
Second, an understanding of the social structure in which law operates can
no longer be taken for granted or regarded as irrelevant; law students- and
hence law teachers- must acquire that understanding, and must somehow
learn to take into account the contributions which other disciplines and
sciences can make to the solution of social problems. 2 8
This is an excellent summary of the points of general agreement
between the participants in the discussions. The significance of
the exercise was that it was a serious attempt to work out rigor-
ously and in detail the implications of sociological jurisprudence
for law school activities. There was a general sympathy with the
approach to law that had been made popular at a general level
by Holmes and Pound. There seems also to have been agreement
on the need to expose law students to much more 'non-legal'
 COLUMBIA IN THE 19208 51

material and on the value of reclassifying the subject-matter of

study. It was further recognized by many that a great deal of
research would be needed before much of the relevant 'non-legal'
material would be available for use in teaching. But a serious
division of opinion emerged as to the priority to be given to such
research. The issue was joined in respect of the objectives the law
school should pursue. 29 Some, led by Oliphant, argued that the
school should have as its principal objective scientific research into
law as an aspect of social organization; it should devote itself
'primarily to the non-professional' study of law, in order that the
function of law may be comprehended, its results evaluated and
its development kept more nearly in step with modem life.' 30
The school would become a genuine 'community of scholars',
and such teaching as would be done would be directed towards
training in scholarship. This was essentially the policy which had
been advocated by Oliphant in 1923, and less explicitly hinted at
by Cook even earlier.
Opposed to this was the view that professional training should
continue to be the school's principal function, albeit by means of
a radically different approach. In Oliphant's Summary the objec-
tive is expressed in terms of 'providing an adequate scientific
preparation for public service in law'; this formulation takes into
account graduates 'who serve society in capacities other than those
of the practising attomey' 81 and stresses the 'public' nature of
'private' practice, but it was probably not intended to suggest any
major divergence from the traditional aim of preparation for
practice at the bar. The meaning of 'scientific' in this context
is obscure.
Oliphant's Summary states that no formal decision was taken
on this issue and that the discussions proceeded on the basis that
Columbia should pursue both objectives simultaneously, perhaps
by setting up a 'research school' alongside, but independent of, the
'training school'.32 Although such a compromise was the best that
Oliphant might have hoped for in the circumstances, this state-
ment glosses over both the importance of the division of opinion
and the strength of feeling it engendered. The supposedly rational
structure of the proposals for reform was uneasily perched on the
shaky base of an unresolved disagreement about competing
objectives. That these objectives were felt to be incompatible was
dramatically illustrated by the deanship crisis, which had un-
52 KARL LLEWELLYN AND THE REALIST MOVEMENT

fortunate consequences for the law school and perhaps for the
development of American legal education generally. 88
During much of the period of the curriculum discussions
Dean Jervey had been ill. His resignation in February rg28, after a
relatively short period in office, precipitated a crisis over the
appointment of his successor. The faculty formed into two
factions, one supporting Oliphant, the other Young B. Smith.
Legally the power of appointing the Dean was vested in the
Trustees of the University on the recommendation of the Presi-
dent, but on the last occasion members of the faculty had been
invited to propose a nominee. This time, however, knowing that
the faculty was deadlocked, President Butler acted on his own.
Although he had up to this point given every encouragement to
Oliphant, he accepted the advice of a number of outsiders, in-
cluding ex-Dean Stone, and decided in favour of Smith. Without
even going through the form of consulting the faculty he
announced that unless he was persuaded to change his mind
before Monday 7 May 1928, he would recommend Smith's
appointment to the trustees. Butler's action was strongly resented.
The official History of Columbia Law School continues the story
as follows:
President Butler's announcement created an immediate uproar. Many
members of the Faculty, particularly those who supported Professor Oli-
phant's candidacy, felt that Butler's action was autocratic and in flagrant
disregard of what they conceived to be the Faculty's traditional prerogatives.
A plenary session of the Faculty was convened at the Men's Faculty Club
on I I 7th Street to protest the action; absent members were summoned
from as far away as Virginia. The Faculty sat all day Sunday, May 6, and
well into the night. The meeting was stormy. Many proposals were discussed,
but a majority could not be secured for any of them. Mter hours of argu-
ment, the only resolution upon which anyone could agree was the self-evident
proposition that any individual member of the Faculty was free to present
his views to President Butler in private if he so wished. The great meeting
of protest thus broke up without accomplishing anything. Some individual
protests seem to have been conveyed to the President, but they did not affect
his decision. On April 30, 1928, therefore, Huger W. Jervey's resignation
became effective and on May 7, Ig28, the Trustees made Young B. Smith
Dean. 34
Dean Robert M. Hutchins of Yale and Walter Wheeler Cook,
who was in the process of establishing a research institute at
Johns Hopkins University, exploited the dissatisfaction of Oliphant
 COLUMBIA IN THE I 9208 53
and his supporters. Oliphant and Yntema resigned to join Cook
at John Hopkins. With them went Leon C. Marshall, who had
been a visiting professor, but who might have stayed on; William
0. Douglas went to Yale, where he was joined not long after-
wards by Underhill Moore, who had refused an invitation to go to
Johns Hopkins, on the ground that the venture was unsound.
Thus from one incident, at a crucial point in its history,
Columbia Law School lost some of its most able and lively scholars,
including the three leading participants in the curriculum discus-
sions. That a vacancy for the deanship should have occurred at
that particular moment was unfortunate, for there seems to have
been an excellent prospect for a compromise, if only because it
would almost certainly not have been feasible for the law school
to have abdicated its professional training function. A substantial
number of members of the faculty, probably a majority, were
opposed to the idea; the alumni, a powerful pressure group in a
private university by virtue of their financial contributions, would
almost certainly have been outraged; and there were other influen-
tial outsiders, like ex-Dean Stone, who were known to be against
any such move. Moreover, as Oliphant acknowledges in his
Summary, it was unlikely that it would have been possible to have
financed a research school from university funds ;86 the loss of
alumni support and a reduction of revenue from students' fees
would have increased the financial difficulties.
But for the deanship crisis, or if Oliphant (or someone more
personally acceptable than Smith) had become Dean, Columbia
might well have decided to continue to teach prospective attor-
neys, and to establish a large institute specializing in research
'into law as an aspect of social organization'. If this had happened
the potential of the curriculum discussions might have been more
fully realized. This is, of course, mainly a matter of speculation-
but not entirely. It will be seen that a valiant effort was made by
those who stayed to implement the plans for reform, with at least
partial success. It will be seen that those who left went off in
directions which, in the judgment of their contemporaries, turned
out to be blind alleys. It can be argued that those who stayed had
balance and common sense, but lacked either a clear vision of the
implications of what they were doing or a complete dedication
to the cause of reform. Most of those who left had the vision and
the dedication, but were inclined to let enthusiasm outrun good
54 ltARL LLEWELLYN AND THE REALIST MOVEMENT

judgment. But for the crisis a major split in the realist movement
might have been averted, Columbia might have given a higher
priority to empirical research, and the enthusiasms of the
'Scientists' might have been restrained by their more moderate
colleagues. On the other hand, it is quite possible that differences
of opinion and personality conflicts would have continued to
disrupt the faculty; as it turned out the one clear benefit that was
derived from the departure of the dissidents was a distinct lessen-
ing of tension.
Anyone familiar with academic politics will know how chance
factors in a situation-such as individual character, personal
relationships, financial opportunity or accidents of timing-can
complicate or obscure genuine differences on issues of principle.
The events of 1928 had their share of such factors. Nevertheless
a profound difference underlay the split and it is important to see
this issue sharply, even at the risk of some simplification of history.
For present purposes its main significance is that it sheds light on
the nature of realist jurisprudence and of the split within the
realist movement.
Karl Llewellyn sometimes divided legal theory into three
branches : legal philosophy (concerned mainly with values, and the
ends of law), legal science (concerned with empirical description)
and jurisprudence, or 'prudentia iuris' (the study of the machinery
of law government and the methods and techniques of the person-
nel of the law-the law crafts). 86 These categories may not
provide a suitable basis for classifying individual jurists, let alone
'schools' of thinkers, for a rounded theory of law encompasses all
three aspects, but they suggest convenient labels for the two
factions at Columbia: those who resigned after the deanship crisis,
i.e. Oliphant, Moore, Douglas, Yntema and Marshall, may be
referred to as 'the Scientists', while those who stayed on may be
referred to roughly as Prudents (or Prudentes) by virtue of their
concern with professional training. Cook should be added to the
former group for obvious reasons.
Although the classification is a rough one, certain patterns are
apparent in respect of each group. Four of the Scientists, Oliphant,
Yntema, Cook and Marshall, had never practised law (Marshall
was an economist with no legal qualifications) and they lacked
the professional orientation of most of their colleagues or their
sense of commitment to professional training. They all had in
 COLUMBIA IN THE 19208 55
common a clear perception of the need for 'scientific' research as
a precondition for progress in integrating law and the social
sciences; they all expressed an interest in contemporary problems
and were concerned with improving legal institutions. Thus they
were not advocating 'pure' research, but research as a preliminary
to the solution of social problems and to the improvement of
professional training. In this Underhill Moore differed from the
others by taking a longer view of needs and priorities. His later
research projects at Yale, especially his parking studies, were
designed to test out concepts and techniques rather than to lead to
immediate practical reforms.
Those who stayed behind, and the new recruits to the faculty
during the next few years, formed a more variegated group than
the Scientists. Yet some relatively clear patterns can be seen in
their attitudes and behaviour during the period 1928-37· They
accepted the professional ethos of the law school, but they would
have emphatically rejected any suggestion that it should be
content to be a 'trade school' or a gymnasium for 'clever chess-
players'. Dean Smith was forever proclaiming a social science
version of the liberal ideal of university education. 17 There is
little to suggest that his faculty was not behind him on this. More-
over, their concern with 'prudentia' was more in respect of trans-
mission of legal skills than in the systematic study of juristic
method (Llewellyn's interest in this was a later development); but
stimulated by the curriculum discussions they were as a group
considerably more self-conscious about what they were doing than
members of any other leading law school of the day. Like most
American law teachers they took teaching seriously. As academics
the Prudents had no option but to claim an interest in research;
the philosophy professed by Dean Smith implied acceptance of the
need for empirical research, but with relatively few exceptions
they remained to a remarkable degree library bound. Percep-
tion of the relevance of fact-gathering was not matched by a
corresponding commitment to doing it. This was the crucial
difference between the Prudents and the Scientists, a difference
which is more clearly brought out by examining the actions of
the members of the two groups in the immediate aftermath of the
crisis.
4
The Mtermath of the Split

THE PRUDENTS
In the long run the traumatic events of 1928 affected the direction
rather than the quality of Columbia Law School. Smith continued
as Dean until 1952. Throughout this period Columbia continued
to grow in size and stature and more than held its own as one
of the great law schools. Smith soon rebuilt an outstandingly
strong team: the survivors included Dowling, Goebel, Medina,
Michael, Patterson and Llewellyn, a nucleus of which most law
schools would be envious. A number of distinguished scholars
from other parts of the university maintained a close association,
notably Robert Lee Hale, the economist, John Dewey, the philo-
sopher, and two distinguished international lawyers, Charles C.
Hyde and Philip C. Jessup. 2 New recruits in the next phase
included Adolf A. Berle, Elliott Cheatham, John Hanna, Milton
Handler, Walter Gellhom and Herbert Wechsler, now familiar
names in American law. All of these men were positively in
favour of a contextual approach to law, but they did not have,
for the most part, a commitment to sustained empirical research.
From 1928-33 Smith succeeded in maintaining much of the
momentum of reform. Wisely, piecemeal revision and continuing
review were preferred to a dramatic break with the past. A
major part of the effort was concentrated on editing 'teaching
materials'. In his report of 1933 the Dean was able to point out
that in the previous three years his colleagues had published four-
teen course books and that a further fourteen sets of materials
had been prepared in connection with revision of the curricu-
lum. By 1937 'of the forty courses other than seminars offered
at Columbia Law School, thirty-six were being taught from books
and materials prepared by members of the Faculty; twenty-six
 THE AFTERMATH OF THE SPLIT 57
case books adapted to the new conception of legal education had
been published and eighteen other collections of materials were
in use in mineographed form.' 8
The compilation of casebooks and teaching materials is a form
of editorial work that has been elevated to an art by American
academic lawyers. English reviewers of this art form often miss
the point when they dismiss American casebooks as mere 'scissors-
and-paste'. It is an arduous, time-consuming activity, involving
more skill than first impressions might suggest. It reflects, more-
over, the seriousness with which the American academic lawyer
tends to view his role as teacher. But to the outsider it seems to
stretch ordinary usage to include this activity under 'research'. In
recent years even American law teachers have begun to question
whether the casebook tradition has encouraged the most worth-
while deployment of talent. The judgment of history may well be
that, for all its virtues, the American casebook tradition has been a
major brake on progress in American law schools, by absorbing
energies which might otherwise have been more fruitfully
employed.
The Columbia faculty between 1928 and 1937 were faithful
servitors of this tradition. A shift from the Langdell model of case-
book was symbolized by a change in title: 'Cases on X' was
replaced by 'Cases and materials on Y'. The 'materials' were
often culled from 'extra-legal' sources; exceptionally they were
the fruits of original research by the compiler. Also, in some
instances, 'Y' was a hitherto unused category, like business organ-
ization or security, representing a revised taxonomy of the
subject-matter of study. There was in fact considerable variation
in the extent to which the Columbia course books were genuinely
'adapted to the new conception of legal education'. Some, like
Goebel's Cases and Materials on the Development of Legal Institu-
tions and Llewellyn's Cases and Materials on the Law of Sales were
clearly novel, but the majority did not diverge radically from the
traditional model.~
It was not only editorial work that diverted the Columbia law
teachers from providing an adequate research basis for their
educational reforms. The law school had for a long time had an
admirable tradition of involvement in public affairs. 5 The New
Deal led to a sharp increase in the extent of this involvement.
Under the Roosevelt administration intellectuals were invited
S8 KARL LLEWELLYN AND THE REALIST MOVEMENT

to participate in American government and politics to an extent

that has only since been equalled in the Kennedy era. During the
New Deal law teachers were in particular demand, and there is a
high correlation between those law teachers who were New Dealers
and those who were associated with the realist movement.
Columbia and Yale were as much Roosevelt's recruiting ground
as Harvard was for Kennedy. In 1933, for example, Berle, Deak,
Dowling, Handler and Hanna from the Columbia Law School all
worked for the United States government. 8 From outside
Columbia Jerome Frank, Felix Frankfurter, William 0. Douglas,
and Thurman Arnold were among the new wave of jurists who
were prominent New Dealers. 7 Dean Smith well knew that the
calls of public service were a threat to the implementation of his
educational plans, but there were compensating advantages, and
the pressures for participation in public affairs were in any case
almost irresistible.
It would be churlish to say that no research was done by a
faculty which between 193cr-3 produced, inter alia, such outstand-
ing works as Berle and Means' The Modern Corporation and
Private Property (1932), Michael and Adler's Crime, Law
and Social Science (1933), Llewellyn's Praejudizienrecht und
Rechtsprechung in Amerika ( 1933), as well as the course books
already mentioned, and an impressive list of other books and
articles. Nor could it be said that no empirical research was
undertaken after 1928. Francis Deak, Michael and Adler, Albert
Jacobs, Adolf Berle, and Richard Powell were among those who
ventured outside the library, while Karl Llewellyn made a somewhat
abortive attempt to investigate the workings of the New York
divorce courts. 8 But the amount done was very small in relation
to the total need that had been pinpointed during the curriculum
discussions, or to what might have been done if there had been a
different order of priorities. Talking about research was almost as
popular as doing it. The library and the armchair were still more
attractive than the market place and the courts. The postgraduate
programme, developed in this period under the chairmanship of
Edwin Patterson, was also to a high degree library-bound.'
This was, perhaps, the area in which a breakthrough would have
been relatively easy to accomplish. Columbia in this phase had
what was probably the most highly regarded and vigorous gradu-
ate programme in the country and the law school attracted a
 THE AFTERMATH OF THE SPLIT 59
number of very promising young scholars who were sympathetic
to the idea of interdisciplinary cooperation. The programme paid
little more than lip service to the idea, perhaps because insistence
on high standards inhibited experiment at graduate level.
During the late I 930s a strong sense of disillusion set in at
Columbia and elsewhere. It is barely disguised in Dean Smith's
reports during the period 1935-9· 'Nowadays' wrote Brainerd
Currie, 'the phrases "functional approach" and "integration of
non-legal materials" are, to a number of law teachers, trite
symbols of frustration.' 10 In a sober appraisal of the Columbia
experiment Currie examined at length how far the disillusion was
justified and what was behind the relative failure of the integra-
tion movement. His basic conclusion is that substantial advances
did result, but that:

••• in the light of twenty-five years of experience, the Columbia studies are
not- at least, not yet- to be classed as epoch-making. A turning-point there
was, but the new era has not arrived .... The main stream oflegal education
flows on much as before. The typical casebook, although its banner now
reads 'Cases and Materials', is essentially like its predecessors. There are
still courses in Contracts, Torts, Property, and Trusts, retaining their old
names and shapes; and even in those courses which have been revamped
and re-named the appellate decision is the focus of study still. Law and
the social sciences remain unintegrated. 11

It is hard to disagree with this judgment or with the diagnosis: of

the many reasons for failure, Currie found the principal one to be
that 'the movement faltered under the staggering weight of the
problems of execution it entailed'. 12 This is in accord with one
of the central themes of the present study, viz. that realism is
hard work. 11 Making due allowance for other factors, such as
shortage of funds, the lure of the New Deal and the reaction
against the realism of the early 1930s, one must conclude that a
major reason for the disappointing outcome of 'the Columbia
experiment' was a failure to perceive with sufficient clarity that
extensive research was a precondition of the kind of educational
reform that was being tried. In so far as there was perception of
need, it was not backed by the will to do enough about it. The
break with tradition was not sharp enough and the promise of a
new era turned sour.
6o KARL LLEWELLYN AND THE REALIST MOVEMENT

THE SCIENTISTS
After they left Columbia all five of the Scientists tried to practise
what they preached by embarking on empirical research. The
Johns Hopkins Institute for the Study of Law, which Oliphant,
Marshall and Yntema joined, can be viewed as an attempt to put
into practice the theories of Walter Wheeler Cook.~* The institute
was founded in June 1928, shortly after the deanship crisis at
Columbia, with Cook as Director. Cook's plans had been maturing
for some time and he was fortunate to have been able to recruit
such a talented team so simply. Johns Hopkins University had an
established tradition of research in applied science and Cook's
plans for an institution devoted to the scientific study of law in
action fitted well with this tradition. The institute was auto-
nomous and was given a free hand to develop its own work.
The first statements about the programme of the institute
contained few surprises. Its professed philosophy rested on three
familiar ideas : 'scientific method', 'social engineering' and 'com-
munity of scholars'. The principal function was to be research,
training being ancillary and directly related to the major objec-
tives of the institute. The clearest statement of education aims was
expressed in negative terms : 'It seems clear that the Institute must
not now (and, so far as we can now see, should never) commit it-
self to maintaining an orthodox professional school for training of
practitioners.' 15
The rationale for the first programme of research states the gist
of the institute's philosophy:

In general, it is appropriate that the selection of research projects should be

influenced by considerations of (a) the availability of personnel, (b) the
social significance of subject-matter, and (c) the scientific significance of
methods and techniques.
The relevance of the availability of personnel is obvious, although it may
be worth emphasizing that scarcity of competent personnel will more
frequently be a limiting factor than might at first thought be supposed. The
personnel problem seems likely to be one of the major problems of the
Institute.
The relevance of the social significance of subject matter is equally
obvious, when it is remembered that the Institute is vitally interested in the
study of the human effects of law. Any final judgment concerning the most
promising areas of study from this point of view may well await further
investigation, but even at the present confidence may be placed in the
 THE AFTERMATH OF THE SPLIT 61
current, widespread, persistent and informed opinion that research is
needed in such matters as the cost and delay of litigation, the defects in
legislative policies and practices, the defective recruiting and discipline of
the bar, the cultural lag of social institutions including law, and the
'prevention of disease' in our social relationships.
The relevance of the scientific significance of methods and techniques is
immediately apparent, once it is recognized that judgments on social and
legal questions should rest, as far as reasonably may be, upon objective data
rather than upon unanalyzed subjective attitudes. Clearly, there should be a
constant effort: to keep the work of the Institute in close contact with the
actual affairs of life; to gather and to use greater and greater quantities of
objective data which are comparable and dependable; to make actual
experiments in the use of different devices in social control wherever pos-
sible; and generally to seek continuously to improve the existing methods
and techniques used in research. Necessarily, fruitful research in this field
will seek to integrate the scholarship of law with that of allied fields. 18

The first programme listed an impressive collection of projects

under five heads: (a) projects lending themselves readily to real-
istic treatment and to keeping close to practical affairs; (b)
projects looking towards making available greater quantities of
dependable comparable data; (c) projects involving the use of the
experimental approach; (d) projects looking toward the improve-
ment of existing techniques; and (e) projects looking toward a
greater integration of law with the other social sciencesY
By no means all of this programme was in fact implemented.
During 1928--g, whilst plans were still being worked out, the work
of the institute reflected the interests of individuals. The four
senior members concentrated for the most part on completing
work they had begun before they had joined the institute. An
official account of the institute's plans for 1928-g18 states that
Cook intended to develop his ideas on 'problems of method in
the study of law and other social sciences' and to continue the
work which culminated in his well known The Logical and Legal
Bases of the Conflict of Laws.19 Marshall, in addition to his own
work on 'the structure of the economic order', was to collaborate
with Oliphant on legal and economic problems of business
management. Oliphant was also to study 'legal and economic
problems in the social control of marketing' and Yntema planned
to investigate 'the development of remedies in the common law'.
All of these studies were broadly conceived, but not radically so,
62 KARL LLEWELLYN AND THE REALIST MOVEMENT

and the majority resulted in competent and interesting publica-

tions.20 For the most part they involved little or no field work.
There was a radical change in the next phase. Empirical work
was begun on a large scale when the institute concentrated most
of its resources in the area of judicial administration. An ambi-
tious series of linked studies of the operation of the courts in
Maryland, Ohio and New York was undertaken. Particular
emphasis was placed on the improvement of the systems of
judicial statistics in these states, and there were numerous sub-
projects connected with such matters as divorce litigation in Ohio
(Marshall), delay in court in New York (Oliphant), and detailed
analysis of the work of selected courts. 21
The early promotional literature of the institute and those
parts of the first programme that were in fact implemented
suggest a distinct bias towards the contemporary and the
utilitarian. This was probably due very largely to the nature of
the financing of the institute. It was dependent on continuing
support from an uncomfortably large number of sources rather
than from university funds or from a major foundation. Law firms
and professional organizations were major contributors; some of
the projects were sponsored by official agencies. Inevitably this led
to pressure to emphasize the immediate practical utility of the
institute's work and to seek quick returns. Much more serious,
however, was the fact that the institute was completely defenceless
against the effects of the Great Crash and the Depression. Before
the completion of even the first series of projects, which represen-
ted a fraction of the first programme, funds ran out and the
institute was forced to close. 22
Two of the 'Scientists' did not join Cook's team at Johns
Hopkins: William 0. Douglas, after resigning in protest at the
manner of Smith's appointment as Dean, moved directly to Yale.
Underhill Moore stayed on at Columbia for a further year,
emulating Achilles in his tent, until he too was wooed to New
Haven. 28 At this time the Yale Law School was moving in a
direction similar to Columbia's although the highly individualistic
approach of Yale law professors did not give so much scope for
coordinated planning and teamwork. In 1927 the appointment of
Robert Maynard Hutchins as Dean, at the age of twenty-eight,
marked the start of a period of renewed efforts to integrate law
and the social sciences. In 1929 a substantial endowment was
 THE AFTERMATH OF THE SPLIT 63
raised, largely through the efforts of Hutchins, for the establish-
ment of an Institute of Human Relations with the aim of bringing
together scholars of several disciplines 'to correlate knowledge of
the mind and body and of individual and group conduct and to
study further the interrelations of the many factors influencing
human actions•.u Members of the law school played a particularly
prominent part in the work of the institute in this period and it
was under its auspices that the most important empirical research
projects relating to law were conducted. Douglas collaborated
with a sociologist, Dorothy Thomas, and others to study the causes
of business failures in the District of New Jersey; 25 Charles E.
Clark and others investigated judicial administration in Connecti-
cut;26 and Dean Hutchins explored the bearings of psychology
on the law of evidence. 27 Of the 'Scientists' at Yale, Underhill
Moore showed the greatest stamina. For nearly twenty years,
until his retirement in 1947, he soldiered on, resolutely, grappling
with the problem of applying scientific method to the empirical
study of law. He first sought to develop methods for predicting
judicial decisions through intensive studies of certain banking
situations (debiting of direct discounts and orders to stop payment
of cheques) ;28 later, in a search for greater precision and objectiv-
ity, he embarked on a protracted and laborious investigation of
the effects of police notices on the parking behaviour of drivers in
New Haven. 29
Moore's parking studies were considered by many to be the
reductio ad absurdum of 'scientism' and they were the target of a
great deal of unsympathetic criticism and ever. ridicule. Today
this project and the Johns Hopkins venture are sometimes referred
to as examples of 'naive realism' and are written off as failures. ao
This judgment has not been confined to unsympathetic critics of
realism. For instance, Karl Llewellyn, who had collaborated
closely with the 'Scientists' up to 1928, was sharply critical of
them in an address in 1956:

Hopkins and Yale - was it about 1929? - got huge grants and with drums
and trumpets put the grants into circulation. I doubt whether in all of the
quest for social science there has ever been such hastily considered, ill-
planned, mal-prepared large-scale so-called research as was perpetrated by
Cook and Oliphant at Hopkins. But it was at Yale that the nadir of idiocy
was achieved when Underhill Moore 'tested out' whether law has mystical
operation by an elaborate observation, metering and statisticking of the
64 KARL LLEWELLYN AND THE REALIST MOVEMENT

noneffect on the parking practices of New Haveners of a change in the

official regulations which he had arranged to keep carefully from coming to
the knowledge of any trafficker.
The Hopkins ebullition and its partial counterparts at Yale had a single
notable effect. For twenty-five years, they pretty thoroughly choked off
foundation interest in such research in law as quested beyond doctrine. 81
The principal reason for these abberations, in Llewellyn's view,
was that too few academic lawyers had been interested enough to
perform the role of a critical audience for the 'Scientists', restrain-
ing overenthusiasm and debunking half-baked ideas. 'Only in
old research fields can technicians be trusted on their own.' 82
The result was that the 'Scientists' allowed themselves to become
victims of their own fads:
Take Moore first: he fadded into pure behaviorism in regard to the effects
of men's behaviour on appellate decision. His base-approach, on this,
sounds almost insane and was certainly perverse. Moore was so set against
taking the impact of words of authority as being in themselves solely
determinative that he insisted on studying behaviour without reference to
the words and configuration of pre-existing rules of law at all, and even
without reference to whether any knowledge of the supposedly relevant
behaviour was brought home to the judges whose deciding was under
inquiry; and he insisted on further assuming that these unknown patterns or
semi-patterns or non-patterns of often obscurely technical lay-behavior
could have significantly measurable and provable determinative impact on
the appellate decisions.
As for Oliphant, with Marshall's help he counted and counted among
the court records of Baltimore and of Ohio. I read all the results, but I
never dug out what most of the counting was good for. Some things were
revealed about time-lapse in litigation and the like, for instance, which I
think a few intelligent newspaper reporters could have developed with
about equal significance and adequacy at an outlay of ten or five per cent
or less of the time and money spent. Certainly among the major sins were
inquiry running wastefully beyond clear hypothesis, unnecessary large-
scale work where careful and shrewd sampling would have sufficed, heavy
quantifying where it did not pay, and slowness to correct poor leads.
What irritates particularly about the work of both Moore and Oliphant,
however, is the failure to build toward theories either of deep basic utility
or of availability to large numbers of workers elsewhere who would be
laboring unblessed by dollars in the hundred thousands or the tens. Moore's
hypothesis would have been basic enough, indeed, if usable; it merely, at
least for the next century or so, is silly. 8 8
Llewellyn hints at other factors behind his disapproval: there
 THE AFTERMATH OF THE SPLIT 65
was too much institutional rivalry and no 'sense of a trusteeship
of experiment and technique for the general legal public'. 8 ~ Of
this both the 'Scientists' and their opponents, for instance at
Harvard and Michigan, were equally guilty. Moreover, the desire
for quick returns and for instant prestige prompted the sacrifice of
pilot projects and cautious advance.
There is some sense in Llewellyn's analysis, but it is at best
incomplete and unfair. It makes no allowance for the methodo-
logical concerns of Moore, who had in any case anticipated most of
Llewellyn's criticisms in his rather ponderous introspection about
his research; the purposes of several of Oliphant's studies of the
courts in Maryland and Ohio, such as those concerned with im-
proved systems of judicial statistics or delay in court, were either
expressly stated or apparent on their face-is it absolutely neces-
sary to spell out the reasons for studying delay in court? Further-
more, it is strange that Llewellyn should have picked out for
special praise Charles Clark's studies in judicial administration in
Connecticut. These were contemporaneous with the Johns Hopkins
studies and concerned with similar, and to some extent over-
lapping, subject-matter. What was the difference between the
studies and whether the alleged superiority of Clark's work was in
respect of conception or execution or both is not made clear by
Llewellyn.
Llewellyn was normally a balanced, even generous, critic and
the strongly emotive language of his criticism is especially surpris-
ing in view of his early sympathies. 85 But it is not unrepresenta-
tive of a generally hostile attitude to the 'Scientists'. Typically,
Moore's work is dismissed as absurd. The Johns Hopkins Institute
had many enemies at the time of its collapse and contemporary
discussions have a strikingly similar emotional aura. Most subse-
quent references to the institute assume that it was a fiasco, and
many imply that it was inevitably doomed to be one. Those
studies of judicial administration that were completed have been,
for the most part, ignored. 86
Whatever the motives of their detractors, there is little doubt
that the failure of the first efforts of the 'Scientists', if failure it
was, must have been convenient for many law teachers. The image
of Underhill Moore sitting on a camp stool in Bermuda shorts in
the streets of New Haven solemnly counting cars could more
easily be made a symbol of the ridiculous and expensive pursuit of
66 KARL LLEWELLYN AND THE REALIST MOVEMENT

trivia by the highly talented. As such it could be a comforting ex-

cuse for defensive hilarity by any innumerate law professor, fear-
ful of statistics, or anxious for a more glamorous occupation. Add
to this the equally comforting quarter-truth that field work is
necessarily expensive and the excuse for staying in the office or
library was almost cast-iron for all but the most tender conscience.
At first sight a camp stool is less cosy than an armchair. Yet what
American legal scholar has been closer to the spirit of scientific
enquiry than Moore in his disdain for facile solutions and quick
results in preference to the patient but passionate pursuit of the
truth?
A thorough and informed post mortem, comparable to Currie's
articles on the Columbia experiment, is still awaited. 87 Among the
points awaiting clarification ar~ the following: how far can the
espousal of 'the scientifi<; analogy' by Cook and Moore be treated
as valid in the light of ~odern developments in the philosophy of
science? Were Moore's methodological postulates sound? What
were the differences in conception and method between the Johns
Hopkins studies in judicial administration and other studies in the
area, contemporaneous and subsequent? What are the grounds
for maintaining that the Johns Hopkins studies were in some sense
inferior? To what extent, if at all, can the 'failure' of these
studies, if they were a failure, be attributed to defective basic
conceptions and faulty planning as opposed to poor execution and
chance factors such as the economic situation and the personalities
of the participants? Was the Johns Hopkins 'failure' relative not
only to inflated expectations of a quick breakthrough but also to a
more sober assessment of what might reasonably have been ex-
pected of a pioneering effort? All of these questions are to some
extent matters of opinion: nevertheless, it would be instructive to
set the detached appraisal of an informed expert armed with the
wisdom of hindsight against the impressionistic and heated judg-
ments of the Scientists' contemporaries.
Finally, the 'failure' of these first projects served further to
obscure the issues that were at the root of the Columbia crisis. Can
a contextual approach to law teaching make much progress before
a great deal of relevant research has been completed? Can this
kind of research be satisfactorily combined with professional
training or will they, at best, be uneasy companions? In short
might there not have been more in the Scientists' case than they
 THE AFTERMATH OF THE SPLIT 67
were given credit for? Forty years later these questions were still
awaiting answers.

THE DIFFUSION OF REALISM

After 1928 the realist movement lost such coherence as it ever had.
Not only did the Columbia Prudents and Scientists go off in
different directions, but 'realist' ideas became widely diffused and
from 1931 realism became the subject of confused and confusing
controversy. The Yale Law School is generally regarded as the
headquarters of realism after 1928. While it was by no means the
only institution at which changes were taking place, it was cer-
tainly exceptionally lively. Some of the atmosphere is evoked by
Thurman Arnold in his typically free-wheeling autobiography.
After describing some of the work of the Institute of Human
Relations and Charles Clark's efforts to make procedure 'the
centre of the Yale curriculum', he continues:

Needless to say, Yale was an exciting place in the days of the Depression.
Harvard represented, to us at least, the conventional attitude toward the
law, the traditional forces dividing the law into separate fields and the lack
of emphasis on procedure. We at Yale were busy tearing up the old courses
and devising new ones that we thought were far better adapted to the reali-
ties of judicial institutions. Wesley Sturges was writing his books on credit
transactions, which threw together the conventional fields of bills and notes,
mortgages, real property, corporate law, and so on. His attention was
centered not on legal theory, but on what happened when financial credits
were involved. William 0. Douglas had abandoned the conventional
course on corporate law and was writing on business units, and including
the law of corporations, partnerships, bankruptcy, receivership, and so
forth, all rolled into one course which gave the students a picture of what
happened in corporate enterprise. Walton Hamilton, an economist who had
never been graduated from law school, was examining cases that related
to the operation of a competitive market place in a free-enterprise society,
using materials that might ordinarily come under a course on the antitrust
laws, constitutional law, or administrative trade regulations. I was giving a
course on the psychological basis for the law with that brilliant professor of
psychology at Yale, Edward Robinson. Out ofthiscoursecame my two books
The Symbols of Government and The Folklore of Capitalism. The conservatives
charged that we were not operating a law school, but instead were denizens
of a cave of the winds. Today even the Harvard Law School offers courses in
68 KARL LLEWELLYN AND THE REALIST MOVEMENT

psychiatry. I like to think, though I am probably overstating the case, that

it all started at Yale. a a

Of course Arnold was overstating the case, for men like Hutchins,
Clark and Moore were building on the work of the pioneer realists.
But Yale in the 1930s was a different place from Columbia in the
1920s. There was a greater interest in psychiatry and psychology,
more emphasis on procedure and process, a decidedly more polit-
ical orientation, especially at the time of the New Deal, and less
concern for the niceties of scholarship. Whereas Dean Hutchins
represented a lofty and idealistic form of liberal humanism, the
brash irreverence of men like Arnold, Sturges, Douglas and Rodell
was more typical of the 1930s and made the efforts of the pioneer
realists look staid by comparison. The rumbustuous iconclasm of
some of their writings, which were often more journalistic than
scholarly, helped to give realism in general an exaggerated
reputation for nihilism.
While the atmosphere at Yale in this period was undoubtedly
stimulating, it was not entirely compatible with the development
of an approach to research which required the patient investment
of enormous labour with no promise of spectacular returns. Prob-
ably more pioneering empirical studies were done at Yale in the
1930s than at any other law school, but the end-product of their
enthusiastic efforts was somewhat fragmented. The presence of
Underhill Moore served to underline the difficulty of reconciling
the ideal of objectivity in science with the quest for insights of
immediate practical application. At Yale, as elsewhere, there was
a loss of impetus as time went on: Dean Hutchins left in 1929 to
become Chancellor of the University of Chicago; the Institute of
Human Relations, although initially better endowed than the
Johns Hopkins Institute of Law, also suffered badly from the effects
of the Depression, and the New Deal seduced two of the most able
Yale men, Arnold and Douglas, away from academic life. But
more important than these specific events was the loss of the
coherence that had characterized the early phases of the realist
movement. Of course, some of the sense of disillusion that accom-
panied the loss of impetus in the middle and late 1930s is attrib-
utable to the very fact of success as 'realist' ideas were at least
partially assimilated into law school culture and began to be taken
for granted. 89 The lack of coherence was also in part a symptom
 THE AFTERMATH OF THE SPLIT 6g
of the times: The 1930s were not uneventful years in American
life and some of their brashness, vigour and turmoil is reflected in
juristic literature. There is more than a grain of truth in C. K.
Allen's suggestion that the jazz age produced a jazz jurisprudence.40
5
The Realist Controversy,
1930-1

Up to 1929 the ferment at Yale and Columbia was neither expres-

sed nor interpreted in terms of 'legal realism'. A number of theoret-
ical papers had been published by Hohfeld, Corbin, Cook, Oliphant
and Moore, but most of these dealt with particular topics and only
one or two invited interpretation as a call for a new brand of legal
theory. The developments at Yale, the Columbia curriculum discus-
sions and the deanship crisis, the establishment of the Johns Hopkins
Institute and the Yale Institute of Human Relations, had all attrac-
ted attention, at least among academic lawyers, but they had for the
most part developed pragmatically and at a relatively down-to-
earth level. The first general discussion of 'legal realism' as a
distinct form of jurisprudence was a paper by Karl Llewellyn, which
appeared in the Columbia Law Review in 1930. Llewellyn had been
a pupil of Corbin, Hohfeld and Cook at Yale and, as a relatively
junior member of the faculty, he had participated in the events at
Columbia between 1924 and 1928. In 1929 Llewellyn was invited to
give a paper on 'Modern Concepts of Law' at a Round Table on
Current Trends in Political and Legal Thought. This was published
in the following year under the title 'A Realistic Jurisprudence-
The Next Step'.1 Although his own contribution to developments
at Yale and Columbia had been relatively insignificant up to this
time, Llewellyn was particularly well qualified to identify some of
the new trends, to place them in the context of their intellectual
history, and to suggest possible lines for future development. In
this first round of the realist debate he missed the opportunity.
Instead he wrote a loosely organized paper which starts with the
rejection of a general definition of 'law', explores perceptively some
 THE REALIST CONTROVERSY, 1930-1 71

of Pound's limitations as a theorist, mixes in some quasi-Hohfeldian

ideas about remedies and rules, and ends with a plea for an inter-
disciplinary approach to legal research, with human behaviour as
an important focus. A pot pourri of interesting ideas, some of them
as yet only half formed, this paper represented a definite step in
Llewellyn's development as a theorist, but it is not to be recom-
mended to someone who seeks a coherent introduction to realism.
Historically its chief significance is that it gave currency to 'legal
realism' as a label of somewhat indeterminate reference. In his
paper Llewellyn had been careful not to make rash generalizations
about the ideas of others; subsequent commentators did not always
follow his example.
Although Llewellyn's paper contained some controversial state-
ments and had been quite critical of him, Roscoe Pound wrote a
warm letter of congratulations. Llewellyn was delighted and may
even for a time have been under the impression that Pound looked
on him with special favour. If this is so, he was sharply disillusioned
in the following year, when 'realism' became the focal point of a
bitter and protracted controversy.
In 1930 Llewellyn's The Bramble Bush and Frank's Law and the
Modern Mind were published in quick succession. Both books were
eminently readable, both were provocative, in time both proved to
be the least balanced and the most widely read works of their
respective authors, prompting the thought that in jurisprudence it
pays to strike extreme postures if one wishes to attract attention or
make money. Of the two, Law and the Modern Mind was the more
extreme and attracted the greater attention. Frank, who was an
alumnus of the University of Chicago Law School, was at that
time practising at the New York bar and he lacked the scholarly
inhibitions which, at least until that date, had restrained even the
most radical jurists at Columbia and Yale. 2 He had, moreover, a
significantly different orientation from most academic lawyers, as is
evidenced especially by his greater interest in the fact-finding
processes of lower courts than in the resolution of points of law by
upper courts, a concern which still dominated the attention of
library-bound academics. 8 Law and the Modern Mind is a polemic,
written in the style of a well read journalist: with bold overstate-
ment and engaging wit Frank attacked on a broad front and in a
sweeping fashion 'the basic myth of legal certainty'. While his most
stinging barbs were directed against legal reactionaries, represented
72 KARL LLEWELLYN AND THE REALIST MOVEMENT

by Joseph Beale of Harvard,' Frank was sufficiently damning of

revisionists like Pound8 and Cardozo8 to invite a response from
within the citadels of sociological jurisprudence. Only Holmes, 'the
completely adult jurist', was accepted as a model. 1 This dual chal-
lenge to the values of the Harvard Law School as exemplified by
Beale, and to moderate sociological jurisprudence, not surprisingly
provoked a response from Roscoe Pound, who was the Dean of the
former and the doyen of the latter.
The March 1931 number of the Harvard Law Review celebrated
the ninetieth birthday of Mr Justice Holmes. Pound's contribu-
tion was an article entitled 'The Call for a Realist Jurisprudence' ;8
it comes between some conventional eulogies and some scholarly
examinations of different phases of the Justice's work. This halfway
position is not inappropriate, for the article is scholarly in concep-
tion but unscholarly in execution. As Pound later admitted, it was
written in haste at a time when he was burdened with administrative
duties, not least his work as a member of the National Commission
on Law Observance and Enforcement. 9 The gist can be summar-
ized in four propositions : there is a new school of young law
teachers who are calling for a realist jurisprudence; we should try
to understand them sympathetically; there is a widespread
tendency among members of the school to make certain elementary
errors; a relativist realist jurisprudence should follow my seven-
point programme. The views attributed to this school are convinc-
ingly shown to be erroneous or exaggerated, but no subscriber to
these views is mentioned by name; the seven point programme is
a typical Poundian hotch-pot-a list of quite sensible, but only
vaguely related suggestions. 10
Pound repeatedly emphasized that his intentions were not
polemical: 'It is much more important to understand than to criti-
cize',11 he wrote, and in a letter to Llewellyn he congratulated him-
self on his long record of abstention from polemical jurisprudence.12
Nevertheless the core of the article consists of sweeping criticism of
a number of ideas that he attributed to juristic realism. 18 In the
circumstances it is hardly surprising that he provoked a strong
reaction.
Since Frank's Law and the Modern Mind and Llewellyn's
Bramble Bush and 'A Realistic Jurisprudence-The Next Step' had
been published in the previous year, the authors naturally interpre-
ted Pound's article as a covert attack on them and a particularly
 THE REALIST CONTROVERSY, 1930-1 73
unjust one. Llewellyn was keenly disappointed, because of Pound's
earlier encouragement.
When Pound's article 'The Call for a Realist Jurisprudence' appeared in
the March Harvard Law Review, jerome Frank and I were distressed. We
felt that Pound was mistaken as to the views of the 'realists' and as to their
significance for his own thinking. We felt that his criticisms were in the main
well taken, if anyone held the views criticised; but we knew of hardly
anyone whom one might fairly suspect of holding any of the views criticised.
And as to every pertinent criticism we thought we recalled one or more
'realists' who had anticipated Pound in print. We thought that a canvass
of the literature and the placing of the results of such a canvass, point by
point, against Pound's article, would greatly clarify the situation. u
At first they encountered resistance to their plan. The Harvard
Law Review refused to grant them space for a reply until pressure
was brought to bear on the Editor by members of the Harvard
faculty, including Pound himself.ts Pound, however, when chal-
lenged to name individual realists, vaguely mentioned Bingham
and Lorenzen, exonerated Charles E. Clark and then retreated
behind the excuse of pressure of work. 18 Llewellyn and Frank had
to compile their own list of possible 'realists'. It will be seen later
that this above all else has been a source of confusion about realism.
For this reason the basis for the list needs to be considered in some
detail.

WHO WERE THE REALISTS?

Criteria for membership of a group of thinkers may be of different
kinds: most commonly the criterion takes the form of acceptance of
one or more propositions; for example, 'a positivist is one who
accepts that there is no necessary connection between law and
morals': 17 Adherence to one or more particular propositions may
be a necessary condition of membership of a group or school, or a
sufficient condition, or both, or neither. There are, of course, other
kinds of criteria. A group of thinkers may, for example, be charac-
terized by their acceptance of the intellectual leadership of a
particular person (e.g. Thomists) or by their historical or geograph-
ical relationship (e.g. the Vienna Circle or the Bloomsbury Group),
although it is unlikely that the criteria of identification of any
group of thinkers would entirely exclude a reference to their accept-
ance or rejection of certain ideas. Thinkers and ideas tend to resist
74 KARL LLEWELLYN AND THE REALIST MOVEMENT

neat classification, with the result that the historian of thought, and
others who wish to make such classifications, are faced with a recur-
ring dilemma: insistence on precise criteria of membership of a
group may result in the exclusion of individuals who may fruitfully
be considered in relation to members of the group; lack of such
precision is a potent source of error.
That Llewellyn was well aware of these difficulties is shown by
his repeated denial that there was a school of realists and by his
warnings about the dangers of making generalizations about the
amorphous collection of trends that he characterized as a 'move-
ment'.18
The term 'realism' itself has been of very limited assistance in
identifying 'realists'. Outside the sphere of jurisprudence the word
has several usages. Realism in art is not necessarily the same as
realism in philosophy; a realist may be contrasted with a romantic,
with a nominalist or with an idealist; to philosophers the question
'What is reality?' is as perplexing as the question 'What is truth?'
In jurisprudence the term 'legal realism' has also been controversial,
but the literature supports Rumble's conclusion that 'logomachy
over "legal realism" is a cul-de-sac'. 19 Llewellyn used the term
fairly consistently, if not very precisely. Although he did not
provide a complete definition, the following formulation would
seem to be consistent with his normal usage: 'A realist is one who,
no matter what his ideological or philosophical views, believes
that it is important regularly to focus attention on the law in action
at any given time and to try to describe as honestly and clearly as
possible what is to be seen.'
Several points about this definition should be noted. First, it
approximates to common-sense 'realism', in the sense of 'actual
recording of things as they are', and has no necessary connection
with realism in the philosophical sense. 20 Secondly, the belief in-
corporated in the definition is hardly a matter for sharp contro-
versy. Few jurists are likely to believe otherwise than that realistic
observation of the law in action is a valid and valuable activity,
although not all jurists will act on this belief. 21 Thirdly, 'realism'
is not confined to study of judicial processes, but 'it applies to any-
thing'.22 Fourthly, the definition, taken by itself, is vague and begs
a lot of questions, some of which are or might be controversial.
What is encompassed within the concept of 'the law in action' (or
'the institution of law')? To what extent can description be
 THE REALIST CONTllOVEllSY, I 930- I 75
detached from the observer's desires or values? How important
for what purposes is description of what? For any given purpose,
what is the most appropriate method for arriving at an adequate
description? And so on. Llewellyn's usage of 'realism' was deliber-
ately divorced from his own personal views on such issues and from
the views of other members of the American realist movement.
Accordingly, the term 'realism', so defined, is as uninformative as it
is uncontroversial and it is a rather tenuous basis for classifying a
group of thinkers, since few lawyers are not 'realists' in this sense.
In interpreting the American realist movement, belief in 'realism'
in the broad sense might be a necessary, but could hardly be a
sufficient, criterion of membership. 23
In Some Realism about Realism, Llewellyn and Frank were
obliged to identify as realists a number of named individuals in
order to test out the validity of Pound's allegations about the so-
called 'realist school'. Although some commentators have compiled
their own lists,2' Llewellyn's 'sample' of twenty, which is set out
here, is the one most commonly used as a means of identifying 'the
realists' by those who have bothered to be specific.
The criteria employed by Llewellyn and Frank were somewhat
artificial. They took as their starting point certain attributes men-
tioned by Pound. The principal ones were as follows: (i) Younger
teachers of law ;25 (ii) insistence 'on beginning with an objectively
scientific gathering of facts'; (iii) interest in the psychology of
rationalization; (iv) 'looking at precepts and doctrines and institu-
tions with reference to how they work and fail to work and why';
(v) open recognition of the non-rational elements in judicial
behaviour. 28 'If these were the attributes of the "new realists",
we knew who they were.' 27 But it was by no means clear who held
the views attacked by Pound. Accordingly the net was cast wider
and three further criteria were employed in choosing 'the sample':
'(i) they must include the leading figures in the new ferment; (ii)
in order that we may turn up most passages supporting the items
we challenge, the men chosen must include all who are reputed to
have taken extreme positions; (iii) a wide range of views and
positions must be included.' 28
These criteria may have been appropriate for the debate with
Pound, but they are seriously inadequate as a basis for interpreting
realism as a form of legal theory or as an historical phenomenon. If
realism is to be treated analytically, it is artificial to restrict the
 LLEWELLYN'S 'SAMPLE' OF REALISTS
Name I Dateof Law degree(s) Occupation in 193o-1
Birth from
I. W. Bingham 1878 University of Chicago Professor of Law, Stanford
2. C. E. Clark x88g Yale Dean, Yale Law School
3· W. W. Cook I873 Columbia (LL.M.) Johns Hopkins Institute
4· A. L. Corbin 1874 Yale Professor of Law, Yale
5· W. 0. Douglas x8g8 Columbia Professor of Law, Yale
6. J. Francis x8go University of Chicago (J.D.), Professor of Law, Oklahoma

7.J. Frank
8. L. Green I x88g
1888
I
Yale (J.S.D.)
University of Chicago
LL.B. (Texas), Hon.
1921-8
Practising Attorney, N.Y.
Dean, Northwestern University
M.A. (Yale) Law School
9· J. C. Hutcheson 1879 Texas 1931.Judge ofUSCA Fifth

10. S. KlaUll I Circa

1900
Columbia
Circuit
Practising Attorney, New
York City*
II. K. N. Llewellyn 1893 Yale Professor of Law, Columbia
12. E. G. Lorenzen 1876 Cornell, Gottingen Professor of Law, Yale
13. W. U. Moore I879 Columbia Professor of Law, Yale
14. H. Oliphant 1884 University of Chicago Johns Hopkins Institute
15. E. W. Patterson 1889 Harvard (LL.B. S.J.D.) Professor of Law, Columbia
16. T. R. Powell 188o LL.B. (Harvard) Professor of Law, Harvardt
17. M. Radin 188o LL.B. (N.Y.U.) Professor of Law, University of

18. W. A. Sturges
I g. L. A. Tulin I 1893
1901
I Ph.D. (Columbia)
LL.B. (Columbia) J.D. (Yale)
LL.B. (Yale)
California (Berkeley)
Professor of Law, Yale
~ociate Professor of Law,
Columbia
20. H. E. Yntema I 1891 I B.A. (Oxford) Johns Hopkins Institute
S.J.D. (Harvard)
• Taught at Columbia until 1928. t Taught at Columbia 1911-25.
 THE REALIST CONTROVERSY, I 930-I 77
term to people who happened to be younger law teachers in I931:
Holmes, Gray, Cardozo and Pound himseU were, in some respects,
closer to the leaders of the ferment than were several of the people
included in the sample. 29 Furthermore, it is rather quaint to seek
for shared characteristics among a group deliberately selected for
its diversity.
There are other features about the selection of the sample which
deserve comment. The institutional connections of those included
are of interest. Only Powell and Patterson could be called Harvard
men; few people would regard them as the leaders of the ferment. 5°
Sixteen out of the twenty had at that time close connections
with either Yale or Columbia, or in some cases with both. Of the
four exceptions, only Frank and Bingham could be said to have
made significant contributions. 81 Moreover, several notable omis-
sions from Llewellyn's list were also connected with Columbia or
Yale. 82 The same is true of a high proportion of individuals who
came into prominence later and who have been identified as 'real-
ists' by one or more commentators. ss Thus, for example, in
Llewellyn's later paper, 'On Reading and Using the Newer Juris-
prudence' (1940), works by several people not on the original list
are considered. Accordingly we must conclude that Llewellyn's
sample of realists cannot today provide a satisfactory basis for
either an historical or an analytical treatment of American legal
realism.
In 1931 Frank and Llewellyn circulated a questionnaire to the
individuals on the list. All those who replied agreed that if Pound
had intended to refer to them he had badly misrepresented their
ideas. One or two doubted the wisdom of a public response. Several
expressed surprise at being labelled 'realists' and others disclaimed
membership of a 'school'. From the replies it was quite clear that
Frank and Llewellyn had no mandate to act as spokesmen for any-
one but themselves. 84 Undeterred, they set to work to analyse a
selection of the writings of the persons on their list. In the end
Llewellyn did most of the work, including the drafting of the article
and, on Frank's insistence, it was published under his name alone. 85
The reply to Pound appeared in the June number of the Harvard
Law Review under the title 'Some Realism about Realism'. In form
it was a model for disciplined polemics. In Part One Pound's article
was treated on the analogy of an indictment. His criticisms of 'the
realist school' were broken down into thirteen specific charges and
78 KARL LLEWELLYN AND THE REALIST MOVEMENT

a representative selection of the published writings of each of the

twenty people on the list was combed for evidence that they held
the views attributed to them. 86 The sole question considered was
whether the writers in question in fact held certain views; the ques-
tion whether such views were erroneous or misguided was not put
in issue. In all, approximately a hundred published pieces were
canvassed. The findings were convincing:
Of eleven points on which evidence in support could be diagnosed and
counted, we find such evidence as to seven- but how much? We can adduce
some support for one point from three ofour twen9' men, for each of four further
points from two of our twenty, for each of two further points from one of
our twenty. One of our twen9' men offers some support for three of the eleven
points, three offer some support each for two of the eleven points, four offer
some support each for one point. In no instance is the support offered strong, un-
ambiguous, or unqualified, even on the printed record. a?
What this amounted to was that nearly all of Pound's general
accusations against 'the realist school' were completely unwarran-
ted; at most a few individuals in a few passages, for the most part
unrepresentative, had made vulnerable remarks. Far from under-
standing the 'school', Pound had badly misrepresented it.
Llewellyn's analysis showed that Pound had been guilty of two
unscholarly practices. First, he had committed an elementary
fallacy:
A believes a and is a member of group R
B believes b and is a member of group R
.·• all members of group R believe a and b.
Secondly, by failing to identify any particular individuals as real-
ists, let alone specific passages in which they had committed the
alleged errors, he had failed to produce evidence in support of his
allegations and had made disciplined discussion of them difficult,
if not impossible. Llewellyn's exposure of Pound was so effective
that it is disappointing that some of Pound's accusations continued
to be levelled against 'the realists' and that the pernicious practice
of indeterminate attribution of views also continued.
Having shown convincingly what realism was not, Llewellyn
proceeded to try to analyze what, if anything, it was. Part Two of
the article is an inquiry into the extent to which it i$ possible to
generalize about realism. Llewellyn was emphatic that there was no
school or group of realists, sharing a single credo or pursuing a
single programme. Rather there was an amorphous movement88
 THE REALIST CONTROVERSY, 1930-1 79
of individuals who shared some common points of departure, but
who were working independently in different specialized fields and
with a variety of orientations. Realism was, at this stage, a 'mass of
trends in legal work and thinking'. 89 Apart from a copiously docu-
mented survey of some of these trends, the most striking feature of
Part Two is the famous passage in which he listed nine 'points of
departure' common to the movement:
The common points of departure are several.
(1) The conception oflaw in flux, of moving law, and of judicial creation
oflaw.
(2) The conception oflaw as a means to social ends and not as an end in
itself; so that any part needs constantly to be examined for its purpose, and
for its effect, and to be judged in the light of both and of their relation to
each other.
(3) The conception of society in flux, and in flux typically faster than the
law, so that the probability is always given that any portion of law needs
reexamination to determine how far it fits the society it purports to serve.
(4) The temporary divorce of Is and Ought for purposes of study. By this
I mean that whereas value judgments must always be appealed to in order
to set objectives for inquiry, yet during the inquiry itself into what Is, the
observation, the description, and the establishment of relations between the
things described are to remain as largely as possible uncontaminated by the
desires of the observer or by what he wishes might be or thinks ought
(ethically) to be..•.
(5) Distrust of traditional legal rules and concepts insofar as they purport
to describe what either courts or people are actually doing. Hence the
constant emphasis on rules as 'generalized predictions of what courts will
do.' This is much more widespread as yet than its counterpart: the careful
severance of rules for doing (precepts) from rules of doing (practices).
(6) Hand in hand with this distrust of traditional rules (on the descriptive
side) goes a distrust of the theory that traditional prescriptive rule-formula-
tions are the heavily operative factor in producing court decisions. This
involves the tentative exploration of the theory of rationalization for what
light it can give in the study of opinions. It will be noted that 'distrust' in
this and the preceding point is not at all equivalent to 'negation in any
given instance.'
(7) The belief in the worthwhileness of grouping cases and legal situations
into narrower categories than has been the practice in the past. This is
connected with the distrust of verbally simple rules - which so often cover
dissimilar and non-simple fact situations (dissimilarity being tested partly
by the way cases come out, and partly by the observer's judgment as to how
they ought to come out; but a realist tries to indicate explicitly which
criterion he is applying in any particular instance).
80 KARL LLEWELLYN AND THE REALIST MOVEMENT

(8) An insistence on evaluation of any part of law in terms of its effects,

and an insistence on the worthwhileness of trying to find these effects.
(g) Insistence on sustained and programmatic attack on the problems of law
along any of these lines.... 4o
In the chapters which follow the meaning and significance of
each of these propositions should become clear. It should also
become apparent that whereas Part One of 'Some Realism about
Realism' is exceptionally effective in showing what twenty named
jurists did not believe, Part Two is less satisfactory as an account
of what they did believe and why. Its principal defect is that
Llewellyn, somewhat uncharacteristically, attempted to analyse the
ideas of a rather variegated selection of people without reference to
the relevant historical background, the institutional context, or the
specific issues that had agitated them. Neither Pound's paper nor
Llewellyn's reply gives any indication of the significance of the
Columbia curriculum discussions; even more surprisingly the split
between the Scientists and the Prudents is glossed over. Ironically,
despite Llewellyn's insistence that there was no 'school' of realists,
his use of the term 'realism' and the debate with Pound helped to
establish the idea of a new unitary -ism in jurisprudence, shortly
after the realist movement had split in two and had lost such co-
herence as it ever had.
Of all legal subjects jurisprudence is most susceptible to contro-
versy: juristic controversies are prone to be inconclusive and un-
satisfactory; of juristic controversies that surrounding realism has
had more than its share of slovenly scholarship, silly misunder-
standings and jejune polemics. In 1931 public discussion of 'realism'
got off to a bad start from which it never fully recovered. Whereas
Part Two of 'Some Realism about Realism' has often been treated
as the basic text for interpreting the realist movement, the lessons
of Part One were not always taken to heart. This was doubly un-
fortunate. Some of Pound's accusations continued to be levelled
against 'the realists' and the unscholarly practices of indeterminate
attribution of views and of unfounded generalizations about
realism continued. The following are some examples of such state-
ments:
'The realist cosmos is centred on the judge. Law is what thejudgesdecide.'U
'The realists .•. assert that all that is ever needed is to examine what judges
do, rather than what they say they do.' u
 THE REALIST CONTROVERSY, I 930- I 81
'Realists ••• share the view that law consists of the pronouncement of the
courts.'' 8
'[The realists support] the view that a judge can decide a case as he
pleases.'"
'There is a more or less complete skepticism as to the systematic character
of official action as a quality of the legal order ... '. 46
'In this school, there is recognition only of the factual reality and a complete
disregard for the normative content ofalllaw.' 46
'The attempts of the realists to deal with legal science as if it were identical
with natural science was bound [in the view of Kantorowicz] to fail. •••
The realists confused explanation with justification.'' 7
Some realists (the rule-skeptics) believe that 'talk of rules is a myth'. 48
Many of the realists insist that the rational element in law is an illusion.' 49
And the realists, by their own preference, bypassed the ought of law as
'irrelevant to legal science'. 50

So many views have been loosely attributed to 'realism', so

many people have at one time or another been labelled 'realists'
that it would be laborious, tedious and almost certainly unreward-
ing to attempt a comprehensive analysis of who believed what. How-
ever, Karl Llewellyn is the one jurist who accepted the title 'realist'
without reservations and, in the course of considering his works, it
will become apparent that none of the views quoted above ever
represented his position and that several are almost the exact
contraries of what he believed. It should also be clear that whether
or not it is possible to point to passages in the writings of others
which lend support to such interpretations, by and large the state-
ments quoted above give a seriously misleading picture of the real-
ist movement.
It is not difficult to show that Llewellyn and some of his contem-
poraries have often been misunderstood and misrepresented. It is
not easy to explain why this should be so. A partial explanation is
to be found in the unsatisfactory nature of the first exchange
between Pound and Llewellyn. Failure to identify who were 'the
realists' has been the most fruitful source of error. But other factors
contributed to the confusion: the principal defect of most inter-
pretations of the realist movement, including those of Llewellyn
and Pound, has been that they represent attempts to deal with the
ideas of 'the realists' analytically without reference to their histor-
ical context. To make matters worse the timing of the first round of
'the realist controversy' has sometimes been ignored. This occurred
82 KARL LLEWELLYN AND THE REALIST MOVEMENT

in I93I, after the realist movement, as an historical phenomenon,

had started to disintegrate, but relatively early in the juristic careers
of the two individuals who are most often treated as the two lead-
ing realists, Llewellyn and Frank. It is quite misleading to treat the
writings of these two jurists up to I 93 I as representative of their
work as a whole. Similarly, some of the more controversial writings
that have been sometimes, but not always, associated with 'reali-
ism', such as Thurman Arnold's The Folklore of Capitalism, Rodell's
Woe unto You, Lawyers, Robinson's Law and the Lawyers, and the
writings of Lasswell and McDougal, were published after I 93 I and
really belong to a new, or even a post-realist, phase marked by a
whole range of new concerns and influences. In discussing 'realism'
it is of crucial importance not only to identify who is being categor-
ized as a realist but also what period is under consideration.
To conclude: the main thesis of this essay has been that it is
meaningful to treat 'The realist movement' up to I928 as a discrete
phenomenon, but thereafter the activities and ideas associated with
'realism' became too diffused and diversified to warrant a single
label. The unifying element was the attempt to work out an alterna-
tive to the 'orthodox' approach to legal education and legal
research that was symbolized by the popular images of Harvard and
of Langdell. But the ideas of even the six realists that have been
treated here as key figures up to I93I, Corbin, Hohfeld, Cook,
Moore, Oliphant and Llewellyn, are too diverse for worthwhile
treatment under a single '-ism'. Add Frank, and generalization is
made even harder. Add Green or Arnold or Douglas or Hutchins,
to say nothing of Lasswell and McDougal, and almost any generaliza-
tion of substance is liable to be dangerously misleading, if not down-
right inaccurate. In short, it is safer to treat the realist movement
as an historical phenomenon than to treat 'realism' analytically as
a kind of legal theory. Yet members of the movement did contrib-
ute much of significance to jurisprudence. In this respect there is no
alternative to the detailed study of the contributions of particular
individuals. In my judgment of all those who have at some time
or other been labelled 'realists', Karl Llewellyn is the one with the
best claim to be treated as a major jurist in his own right. Part Two
of this book can be read as a case study of realism, in that an
attempt will be made to explore the relationship between
Llewellyn's major works (especially The Cheyenne Way, The
 THE REALIST CONTROVERSY, I 930-I 83

Uniform Commercial Code and The Common Law Tradition) and

the ideas that he associated with 'realism'. But to see Llewellyn's
works solely in these terms would be oversimple; for, as has already
been stressed, 'realism' is too uninformative and incomplete a label
by which to characterize the work of any jurist.
PART TWO

The Life and Work of Karl

Llewellyn: A Case Study
6
The Man
CURRICUL UM VITAE 1
Karl Nickerson Llewellyn was born at Seattle, Washington on
22 May 1893· His father, William Henry Llewellyn, was a first
generation American of Welsh ancestry, as his name suggests. His
mother, whose maiden name was Janet George, came from a New
England family which claimed descent fro.n Elder Brewster of the
Mayflower and which had settled in Oregon. Contrary to popular
belief, Karl Llewellyn was not of German descent on either side.
The name Karl, it is said, was suggested to his parents by a character
in The Student Prince.
Llewellyn's parents. had contrasting personalities. William
Llewellyn was an easy-going, perennially optimistic businessman of
varying fortunes. There were times when he could claim to be
wealthy, but he was more than once in serious financial difficulties.
Karl maintained affectionate relations with his father, who was by
all accounts an engaging person, but 'their relationship does not
seem to have been very intimate. Karl, who was fond of comparing
people he liked to trees, categorized his father as 'a cherry tree type',
beautiful but not very solid. 2 It seems that Karl's mother was the
more dominating character and exerted a greater influence on him.
Janet Llewellyn married young. Her formal education did not match
her intelligence. Her strict puritan upbringing, her energy and her
brains made her a formidable crusader on a number of fronts.
Described by her son as 'conservatively acting, radically thinking' ,a
she was an ardent evangelical congregationalist, a Daughter of the
American Revolution, and a stalwart feminist. According to one
story she patrolled the docks of Brooklyn in order to obstruct the
prostitutes;' as a boy Karl was made to march in parades on behalf
of suffragettes and against the evils of drink. Those who knew both
Karl and his mother maintain that he took after her in ~ct of his
88 KARL LLEWELLYN AND THE REALIST MOVEMENT

brains, his evangelical ardour, his religious concern, and more sub-
merged, a strong, sometimes crippling, puritan conscience.
Thus Llewellyn's background was protestant, with a tradition of
militant non-conformism on his mother's side. He tended to be
acutely conscious of being different from other people and he asso-
ciated this with his non-conformist ancestry:
Queerness of view and action seems to be in my blood. My great-grand-
mother in her eightieth year became a Seventh Day Adventist, and every
Sunday, seated in blazing sunlight in her parlor window, jaw set and
knitting needles flying, rebuked the unenlightened as they passed to
church. My grandfather lent help and countenance to the then looked down
upon Salvation Army, and was a woman suffragist in the 'seventies. My
mother reads Ellen Key, works for birth control, votes for Debs, and
distributed peace leaflets at the Democratic convention in New York.
Through college I conformed so little that I did not discover until after
graduation what a Big Man was; my uncut thatch became a byword in my
law school days; and the canons of etiquette which I have left unbroken
include few things but eating with the knife. My views have been, and are,
as curious as my clothes. With a few more years, and more experience, I
have gained some respect for most of the accepted ways of action, but little
respect indeed for most of the accepted ways of thought about such action. 5
Although few details survive of Llewellyn's religious education as
a child, it is reasonable to infer from the available evidence that he
was treated to heavy doses of hell fire, bible reading, puritan ethics
and anticlericalism. As a schoolboy and at college he was active in
the YMC,A and when, in his twenties, he acted as counsellor at a
boys' summer camp in Maine he showed his familiarity with the
Bible by producing Llewellynesque versions of the Old Testament
stories.'
At some stage during his adolescence he rebelled against his
religious upbringing and in Germany he at least professed to be an
atheist. From his undergraduate days he moved in an intellectual
milieu in which the ideas of thinkers like Sumner, Freud, Veblen,
Holmes and Dewey challenged any conscious remnants of a Calvin-
istic morality. For all of his adult life Llewellyn was a professed ethi-
cal relativist; he was sceptical of all dogma, tolerant in respect of sex
and religious belief, a Democrat in politics, and a fighter for civil
liberties, taking up cudgels for the oppressed and the underdog-
Sacco and Vanzetti, Blacks, American Indians, and litigants in need
of legal aid. In short, in respect of his professed beliefs on matters of
 THE MAN 89
politics and morality he was not untypical of liberal intellectuals of
his generation, except that he had little sympathy with socialists or
communism. If, as seems probable, a strong puritan conscience and
a deep religious need survived from his childhood, on the whole
they worked beneath the surface. 7
While Karl was still a baby, his father went bankrupt after the
panic of 18gg. Not long afterwards the family moved to Brooklyn,
where Karl spent most of his childhood and adolescence and where
he went to school. Few details survive concerning his childhood and
early education. His time at the Boys' High School in Brooklyn does
not appear to have been particularly remarkable, except that, such
was his intellectual promise, by the time he was sixteen the school
had nothing to offer him academically. He was too young to enter
Yale College and his father decided that he would benefit from a
period in Germany. Eventually, through a chance conversation
between his father and Heinrich Musaus, a German-American resi-
dent of Brooklyn, a place was found for Karl in the Realgymnasium
at Schwerin in Mecklenburg.8 Here he spent three happy years,
boarding with relatives of Heinrich Musaus and participating fully
in the life of the school. Before his arrival he spoke good German
and by the time he left he was bilingual as well as fluent in the local
dialect, 'Mecklenburger Plattdeutsch'. Later he was to publish a
book and several articles on law11 in German; indeed, two disting-
uished jurists, Kocoureck and Ehrenzweig, were to comment that
they preferred Llewellyn's German to his English prose style. 10
Llewellyn probably did not work especially hard at the Real-
gymnasium, but he passed his 'Abitur' (school-leaving examina-
tion) in the spring of 1911. He did particularly well in mathematics
and science, and rather less well in languages. His most remarkable
t~acher was Herr Lachmund, whose classes on Shakespeare increased
his enthusiasm for the English language. He was fond of remark-
ing that he had to go to Germany to learn to appreciate Shakes-
peare.
Llewellyn led a full life during his stay in Mecklenburg. Accounts
of his contemporaries give the impression that he was a member of
a close-knit group of friends who discussed politics, art, love and
life with an intensity which was characteristic of intelligent German
adolescents of the time.U It is reported that 'politically they tended
to the left, in sexual matters to free love and in religious matters to
atheism'.12 If Llewellyn ever in fact professed such views, it was not
90 KARL LLEWELLYN AND THE REALIST 'MOVEMENT

for long, and may only have been a pose; for most of his life the
opinions he expressed were more compatible with his love of tradi-
tion, his puritan background and his intensely religious nature.
Llewellyn's contemporaries describe him as being highly intelligent,
quiet, modest and thoughtful, with 'titanic energy' and 'fanatic
ambition'. His school fellows, in a half-serious projection of his
future career, prophesied that, after practising as an attorney, he
would in time be elected mayor of New York and later president of
the United States; in this capacity he would 'solve the problem of
the negroes which had been an impediment to the development of
America and attack the trusts with all his energy.... Under his
government the People's Party will soon increase and will soon
become the mightiest in the whole United States.' 18
Llewellyn never lost his attachment to Mecklenburg. Whenever he
was in Germany he tried to revisit Schwerin. When an old boys
association was formed he sent a gift of money 'to settle his moral
debts to his old schoo1'.14 He participated in a speech day in 1932
and for a long time maintained contact with several of his school
friends. In 1960 the Lachmunds informed him that the authorities
were threatening to destroy the medieval churches of Wismar on
the Baltic Sea, north of Schwerin. 15 Llewellyn's response was
immediate. He persuaded a number of prominent people to sign a
petition to the East German authorities pleading for their preserva-
tion. Shortly before his death it was announced that it had been
officially decided to restore one of the churches and to preserve the
tower of the second one, but the news reached the United States
too late for Llewellyn to learn of the success of his campaign.18
Llewellyn left Schwerin at Easter, 1911. Before returning to the
United States he attended the University of Lausanne for a brief
time and then, in September 191 r, he entered Yale College as a
freshman. 17 Llewellyn's first two and a half years at Yale are not
well documented. Some personal papers drop hints of a regular
clique of college friends, acute shortage of money, a variety of girl
friends, some attempts at writing poetry and short stories, and a
generally enthusiastic but not especially prominent involvement in
the life of the college. 18 Until 1914 Llewellyn rarely featured in
the Yale Daily News, a most informative journal, except that his
name appeared regularly in the honours lists for academic work.
The History of the Class of Nineteen-fifteen lists, somewhat cryptic-
ally, his principal achievements:
 THE MAN 91
He received a Philosophical Oration, and won a Berkeley Premium, the
Donald Annis Prize [for English and German] ••• and the second L. F.
Robinson Latin Prize. He took part in the Ten Eyck competition, and was
interested in boxing and tennis. Deutscher Verein. Society for the Study of
Socialism. Phi Beta Kappa. Beta Theta Pi. 11
In short, for the first three years of his time at Yale the available
evidence suggests an excellent academic record, fraternity life, a
fair range of activities, but a prominence restricted to academic
achievements. This did not satisfy Llewellyn. His contemporaries
at Schwerin had already noted his 'fanatical ambition'. At Yale he
found himself at a bit of a disadvantage: he was conscious of
coming from a less well-to-do background than some of his
colleagues; he was small and not particularly athletic; he was
aware that he had a good brain, but this was not such a source of
prestige as success at sport or in other extracurricular activities. He
took up boxing with great vigour and with some success. 20 But
this was not enough. He later confessed that he had awaited with
dread the summer of 1914 when a small elite from his class would
be chosen for membership of one of the prestigious secret
societies. 21 Then a way out presented itself. His friend, Hans
Lachmund, had passed a semester at Paris and wrote enthusiastic-
ally about the courses on sociology of Charles Gide, and on the
sociology of law of Rene Worms. He urged Llewellyn to follow his
examp~, if only for a term. 22 Llewellyn decided to accept the
advice, mainly because, by his own confession, he would avoid the
ordeal of the fraternity tapping ceremony.
Thus in the spring of 1914, for not entirely honourable reasons,
Llewellyn spent four months at the Sorbonne studying Latin, law
and French. He was still in Paris when war broke out. There
followed the episode which has since become a legend and which
survives in a number of versions. Briefly the facts were as follows:
on the outbreak of hostilities Llewellyn made his way to Germany
and tried to enlist. Although he had not officially joined up, he
attached himself to the 78th Prussian Infantry, and he accom-
panied the regiment to the western front. He was wounded near
Ypres in November 1914 and spent nearly three months in a
military hospital at NUrtingen. Shortly before he was discharged
in February, 1915 he was awarded the Iron Cross (second class). He
arrived back in the United States in March and returned to Yale.
(A full account of this episode is set out in Appendix A.)
92 KARL LLEWELLYN AND THE REALIST MOVEMENT

Llewellyn's second period at Yale College, after his return from

the war, was very different from the first. He· was now 'a big man
on campus' and was accorded a lot of attention and publicity. He
was much more self-confident and he had matured in a number of
ways. In particular, he seems to have started to take his studies very
much more seriously. About this time he decided that he wanted
to pursue an academic career, but it was far from clear what he
would teach. One of his teachers, E. P. Morris, had stimulated a
passing interest in Latin and this was for a time his favourite sub-
ject.28 However, at this point Llewellyn fell under the spell of
William Graham Sumner, who had been a dominant figure at Yale
in the latter part of the nineteenth century. 2 ~ He had died in 1910,
before Llewellyn entered Yale College, but his ideas were still kept
alive by his writings and by his devoted disciple, A. G. Keller. 25
Sumner's best known work, and the one most frequently cited by
Llewellyn, was Folkways. 26 Although it is now in many respects
outdated, this book is still very readable and quite capable of
making a profound impact upon an impressionable mind. Using as
his main source a wide range of anthropological writings about
preliterate societies, Sumner set out to document the relativity of
social practices and beliefs and the powerful influence for both
conservation and change of the 'folkways' and 'mores' of each
society. Both of these last-mentioned concepts refer to patterns of
individual behaviour which by constant repetition have taken on
the character of mass phenomena. The behaviour of the individual
is in the first instance a response to some felt need ; life in society
consists of satisfying these needs or 'interests', which are based on
the 'four great motives of human action' :27 hunger, love, vanity
and fear. In response to a stimulus the individual proceeds by trial
and error until a reasonably satisfactory adjustment is made and
noticed; when a distinct pattern of behaviour by many individuals
in response to similar stimuli becomes discernible, a 'folkway' has
arisen. 'The Folkways are unconscious, spontaneous, uncoordinated.
It is never known who led in devising them, although we must
believe that talent exerted its leadership at all times.' 28 When
members of a society have become convinced that a particular folk-
way is indispensable to the welfare of that society, it has become
part of 'the mores'. 'The mores are the folkways, including the
philosophical and ethical generalizations as to societal welfare
which are suggested by them, and inherent in them, as they
 THE MAN 93
grow.' 29 Social institutions develop out of 'the mores'. This analysis
of the process of the growth of social institutions fitted in comfort-
ably both with fashionable theories of social evolution and with
Sumner's personal brand of extreme economic individualism.S0
Although it has been said that Folkways was neither systematic
nor original,81 it is generally regarded as one of the seminal early
works of American sociology. It is not easy to state with confidence
in what particular respects it attracted Llewellyn. It is hard to
believe that he ever shared Sumner's extreme individualism or that
he espoused for long such a simplistic form of Social Darwinism.
Llewellyn is said to have been notoriously fond of the term 'mores'
during his time at Yale Law School; but he was later to criticize it,
along with 'custom', as being inadequate as a tool of social analy-
sis.82 His interests in 'primitive' societies may have been aroused by
Sumner's writings, and some of Sumner's favourite concepts-'life
conditions', 'ritual', 'dogma', 'inertia', are examples-became part
of Llewellyn's vocabulary; 'law-ways' was, no doubt, adapted from
'folkways' and Llewellyn's analysis of the concept of 'institution'
appears to have been derived partly from Sumner, partly from an
article by Walton Hamilton. 88 Llewellyn also shared Sumner's dis-
like of professional philosophy and philosophers,u but how far such
similarities can be attributed to 'influence' is uncertain. In acknow-
ledging his debt to Sumner, Llewellyn did not usually lay much
stress on the value of Sumner's ideas and theories, which must in
time have come to seem rather crude and oversimple. Rather he
acknowledged a general gain in perspective. A similar claim is
sometimes made for the study of anthropology in general: that by
studying other societies comparatively one can learn to look at
one's own with some of the detachment of the scientist, and with
an awareness that its institutions and codes of conduct are not the
only possible ones, nor necessarily the most appropriate for its
circumstances. Sumner, Llewellyn claimed, curbed and re-channel-
ed his inherited tendency to crusading radicalism:
As I grow older, I grow no less a rebel, a freak, a non-conformist. But for the
early and deep-cut influences of Sumner's writings, I should by now hold
some obnoxious fighting faith and be stump-speaking a vigorous progress
into jail. As things have turned, however, I study social science, not for any
love of things that are, or belief in their rightness, but because attempted
change seems useless until one finds the laws of change - what can be
changed, and how, and with what result? 11
94 KAR.L LLEWELLYN AND THE R.EALIST :MOVEMENT

Having fallen under the spell of Sumner before he reached law

school, Llewellyn came to the study of law with a predisposition to
see law as a social institution embedded in its surrounding culture,
with a sympathy for comparative work, and with the scepticism of
the ethical relativist about conventions and ideals.
Llewellyn remembered his days at Yale College with fondness, and
he attended reunions of the class of 1915 fairly regularly. But his
memories were mainly social and, apart from Sumner, his studies
did not fully engage him until he entered Yale Law School in 1915.
In a typically free-wheeling summary of his intellectual develop-
ment in one of his jurisprudence lectures he dismissed his under-
graduate days rather curtly: 'I am an autodidache [i.e. largely self-
taught] if I may say so; I learned in college Palaeontology, Latin
and a few things like that. None of the things that I use in my
professional life did I learn from anybody except [in] books and I'm
proud of it... .' 88 He is similarly succinct about the next step: 'On
graduation I had become clear that I wanted to teach, but had
gotten no further towards picking a field than a general interest in
Latin. My father's urging got me into law, and my own inclinations
got me back into teaching.' 17
Llewellyn entered Yale Law School as a student in 1915, at a time
when the school was in the middle of a period of transition. 88 The
influence of Corbin and Hohfeld had begun to make itself felt,
resistance to Langdellian ideas on legal education had been largely
broken down, but the faculty still contained some survivors of the
days of the old 'Yale System', notably Simeon Baldwin and the
Dean, Henry Wade Rogers.
Shortly ·before Llewellyn's arrival Hohfeld's first article on
'Fundamental Legal Conceptions', his paper on 'A Vital School of
Jurisprudence and Law', and Corbin's 'Law and the Judges' had
been published in quick succession. These three essays first brought
into prominence the ideas that formed the basis of a 'new approach'
which gained ascendancy in the law school during the next few
years. Thus Llewellyn's introduction to the law coincided with a
crucial phase in the history of the Yale Law School and of the realist
movement. The arrival of Walter Wheeler Cook in 1916 further
stimulated the intellectual ferment that set the tone of Llewellyn's
time as a law student.
Llewellyn's legal education was exceptional in another important
respect. After America's entry into the war, Yale Law School lost
 THE MAN 95
more than half of its students and a similar proportion of its faculty
(but not Corbin, Hohfeld or Cook). The result was that instead of
finding himself a member of an elite group of law students who
would be to a large extent educating themselves and each other in
a highly competitive atmosphere, Llewellyn got little competition
or stimulus from his fellows. A letter to a friend in 1918, just after
he had graduated, reveals his attitude towards the survivors:
... there are some hopeless homeless souls still here. Some, like me, aren't in
service because they can't get in. With me it's German Army service; with
others it's physical difficulties. Still others are here because they've dodged
getting in, one way or another. Still others are too old, or married and pro-
vided with dependent families or aliens, or taking part in S.A.T.C. work on
the side. But altogether they don't amount to much in respect of quality.
And the best men are gone. a•
However, the war had its compensations, for it brought Llewellyn
into unusually close contact with some of his teachers, especially
Corbin and Hohfeld. It may well be that the reduction in size of the
law school helped to make their approach more coherent and more
visible than might otherwise have been the case. Certainly Llewellyn
subsequently interpreted his experience of law school largely in
terms of his contact with Corbin and Hohfeld and, to a lesser extent,
Cook, Rogers and Taft.
Mter he graduated Llewellyn often referred to Corbin as his
'father in the law' (and in fact addressed him in private as 'Dad'),
and there can be little doubt that in his career as a jurist he owed
more to him than to any other single person. Ironically Llewellyn
did not attend Corbin's classes on contracts, for he had taken a
course on contracts at Michigan under W. M. Page in the summer
before he entered Yale Law School ;40 He was probably taught by
Corbin in two minor courses, quasi-contracts and suretyship; their
closest contact came outside the classroom where they worked to-
gether on the Yale Law Journal during Llewellyn's period as Editor-
in-Chief.41 A remarkable intellectual empathy developed between
the two, reinforced over the years by an affectionate life-long
friendship and a deep mutual admiration. The fact that they
specialized in cognate areas of substantive law further strengthened
the bond. A fundamental harmony in their jurisprudential think-
ing persisted right up to Llewellyn's death, so that in December 196o
Corbin was able to write of The Common Law Tradition: ' •..
never before have I found within two covers so many of the
g6 KARL LLEWELLYN AND THE REALIST MOVEMENT

thoughts that I approve, so much of the judgment I confirm- all

weighed by experience and supported in detail.'' 2
When Llewellyn's writings are considered in detail the affinity
between ideas and attitudes of the teacher and his pupil will
become apparent. In particular, it will be seen that 'The Law and
the Judges' anticipates a number of ideas in The Common Law
Tradition!• How much credit should be given to Corbin for
Llewellyn's achievements must naturally remain largely a matter of
speculation. The pupil was to prove to be a much more articulate
and sophisticated jurist than his teacher. In time their paths
diverged. Llewellyn developed broader interests and was less single-
minded than Corbin, who continued unremittingly to work in the
single field of contracts. In temperament and in style they were
profoundly different, but their basic similarity of outlook and ideas
remained to the end. In particular in their love of case law and
their sense of identification with the ordinary private practitioner of
law and in their emphasis on constant evolutionary change within
a relatively stable tradition, they retained an essential affinity which
overshadowed the differences between them.
Llewellyn's close relationship with Corbin prompts one suggestion
which can at best be treated as speculative. Corbin's most striking
characteristic was the patient relentlessness of his scholarship.
'Craft' and 'craftsmanship' became important concepts for Llewellyn
and he often used Corbin as an exemplar of his ideal of 'the legal
craftsman'. In rgr8-g, at a crucial stage in Llewellyn's intellectual
development, the two of them worked closely together on the Yale
Law Journal, writing over half the comments and case notes
between them. It would be hard to devise a more rigorous appren-
ticeship in legal scholarship than writing a number of case notes
with Corbin. Llewellyn's fondness for praising what he would refer
to as 'good, clean, solid work' must have seemed strange to those
who saw him as a volatile genius, bubbling over with brilliant in-
sights, but slapdash in execution. But much of Llewellyn's work is
marked by painstaking efforts of careful scholarship which seem
out of character with some of his more freewheeling writings. It
may not be implausible to suggest that there was in Llewellyn a
tension between his spirited and imaginative insight and the
'craftsmanship' that he so much admired in Corbin, between his own
inclination and his scholarly ideal. Indeed it is possible that his
contact with Corbin led Llewellyn to internalize his image of the
 THE MAN 97
'craftsman' to such an extent that it acted as a sort of conscience to
which he made himself accountable in all his legal work and which
he probably found it difficult to satisfy."
If Corbin was in the long run the most influential of Llewellyn's
teachers, up to 1918 Hohfeld was his hero of the moment. Like
Langdell, Hohfeld's initial attempt to introduce a new approach in
the classroom had met with fierce resistance from students. 4 a But
by the time that Llewellyn began to take his courses, opinion, at
least among the better students, had shifted from bitter complaint
to a combination of awe and evangelical enthusiasm.
Llewellyn's obituary notice of Hohfeld/ 6 written when he was
editor-in-chief of the Yale Law Journal, bears eloquent testimony to
this enthusiasm, which was no doubt heightened by the emotional
atmosphere that surrounded Hohfeld's last illness and death at the
early age of thirty-eight. Hohfeld's supporters saw him as a prophet
tragically cut off in his prime and Llewellyn, who was by then one
of his most ardent admirers, was among the leaders. In addition to
writing his obituary, he organized his fellow students to continue
Hohfeld's course on conflicts and even for a short period arrogated
to himself the role of unofficial literary executor. 41
In praising him, Llewellyn stressed the breadth of Hohfeld's
learning and his vision of the law as a whole more than the more
prosaic virtues of clarity and precision. He found these qualities
particularly in his work on conflicts. 48 In his own teaching Llewellyn
used to insist that Hohfeld's distinctions between the four meanings
of 'right' should be part of the elementary equipment of every law
student, 49 and he was always careful to observe them. In the
Uniform Commercial Code these distinctions were also observed,
but his terminology was not followed ;ao Llewellyn learned from
Hohfeld to be sceptical of abstract legal concepts like 'ownership',
'possession', 'master and servant', and he consciously adopted the
technique of 'narrow issue thinking', using it to particularly good
effect in his analysis of 'title' in sales.a 1 But as time progressed his
enthusiasm for Hohfeld visibly waned; he became increasingly con-
scious of the limitations of the usefulness of the scheme of jural
correlatives and opposites, and he also expressed a number of
reservations about the details of the analysis and even of Hohfeld's
understanding of logic.a 2 There remains, moreover, the obvious
fact that the two men were of quite different cast of mind. In his
German schooling, in his classical studies, and in law school,
g8 KARL LLEWELLYN AND THE REALIST MOVEMENT

Llewellyn was repeatedly exposed to teachers who emphasized the

twin values of verbal precision and rigorous conceptual analysis.
Their outlook left its mark on his thinking, as did Korzybyskian
semantics,58 but they never subverted his more basic desire to ex-
press himself in flexible and figurative language. He tended to
prefer vague but suggestive concepts to precise ones, often deliber-
ately refusing to define his terms. A Hohfeldian style and 'situation-
sense', 'life situation', 'law-stuff' and 'right reason' are hardly
compatible. Hohfeld was one of the young man's heroes, but his
legacy was primarily a vision of law from a mountain peak, the
technique of narrow issue thinking and an understanding of the
differences between 'must', 'may' and 'can'.
Both personally and intellectually Llewellyn was closer to
Hohfeld and Corbin than he was to Cook. Llewellyn acknowledged
Cook's influence on his ideas about judicial reasoning and he recog-
nized his analytical brilliance, but he never sympathized with
Cook's anti-professional orientation and he was later to be highly
critical of his attempts at 'scientific research'. 5• Subsequently
Llewellyn and Cook were colleagues at Yale for a time and appear
to have been on good terms, although not close to each other.u
Two more of Llewellyn's teachers deserve brief mention. Dean
Henry Wade Rogers gave him first-hand experience of the old
'Yale system' of instruction. 56 Between I 9 I 3 and I 9 I 6 Rogers
combined the deanship of the law school with his position as a
Judge of the United States Circuit Court of Appeals. He was clearly
a relic of an older tradition and he appears to have epitomized for
Llewellyn much of what was under attack by the younger teachers
at Yale. On one occasion, after a scathing attack on Rogers,
Llewellyn commented sarcastically: 'I rate Henry Wade Rogers'
effect on me as being one of the really vital stimulating pieces of
my legal education'. 57 This was probably Llewellyn's first contact
with one of the supposed 'enemies' of realism.
In a more subtle way ex-President Taft also unwittingly made
an impression. 38 Taft, who taught constitutional law, was often
cited by his former pupil as a prime example of a man who was
'almost without consciousness' of the techniques he actually used in
practice. 59 His teaching was old-fashioned and formalistic, with
a 'correct interpretation' for each decision. He would often break
off from exposition and tell anecdotes full of practical insights
drawn from his experience in politics, on the bench and as an
 THE MAN 99
administrator, but he made it clear that he thought that these were
digressions and not part of the subject-matter of the course.
Llewellyn was fond of telling how Taft complained about him to
the Dean of the Yale Law School for 'criticizing the Supreme Court'.
Taft in expounding doctrine would at times accept happily the
pure language of the court as laying down the ratio decidendi of its
decision, but at other times, without any apparent consciousness
that he was using a different technique, he would with consummate
skill whittle down the opinion to a very narrow holding. When
Llewellyn imitated Taft's whittling technique to produce a narrower
interpretation than the language of the court suggested on some
cases which Taft had never felt the need to distinguish, Taft inter-
preted this as impertinent and uncalled for criticism and reported
him to the Dean. Analysis by a student amounted to criticism,
analysis by Taft was the way to find the true holding.
In many respects Llewellyn's legal education reflected the pre-
vailing orthodoxy. The curriculum was conventional and oriented
towards private practice, with a heavy emphasis on property,
commercial law and procedural subjects. He studied Roman law,
but not jurisprudence. Because of the war there were few optional
courses. There was little emphasis on history or on statute law or
administrative law. Although Cook, Corbin and Hohfeld were all
emphasizing in different ways the divergence between law in books
and law in action, their approach was analytical, appellate cases
were almost exclusively the subject of attention, they were
concerned to find the 'real rules' behind the decisions and they
had not turned to dealing systematically with questions of policy or
social facts.
Llewellyn graduated easily top of his class in I9I8 magna cum
laude. In his final year his lowest mark was 88 per cent. He was
elected to the editorial board of the Yale Law Journal in I 9 I 6, and,
because of the crisis in the law school occasioned by the war, he
remained as an editor for over three years, a much longer period
than usual. In I9I8, after he had graduated, he was invited to stay
on as Editor-in-Chief to keep the journal going with a depleted
editorial staff. During the academic year I9I8-g Llewellyn in fact
had a triple role: he was Editor-in-Chief of the journal; he was a
student, reading for the Connecticut Bar examination (admitted
1919) and for the J.D. degree (which he obtained in 1920); and he
was also a part-time instructor in the law school. 60
IOO KARL LLEWELLYN AND THE REALIST MOVEMENT

Llewellyn's first opportunity to teach was occasioned by the illness

of John Edgerton, the Professor of Commercial Law. In the spring
of 1919 Llewellyn took over Edgerton's course on bills and notes.
In the summer he gave a course on partnership and in the following
academic year he taught bills and notes, partnership and sales.
Thus it was chance rather than choice that led him to become a
specialist in commercial law.81 It remained, together with juris-
prudence, his principal area of interest for the rest of his life. At
first sight it might seem paradoxical that so prosaic and technical
a subject should have attracted someone with poetic tendencies
and a strong sociological bias. The paradox is only apparent. The
world of commerce had an enduring fascination for Llewellyn. In it
he found both aesthetic and intellectual satisfaction. At one level
he had a romantic vision of the vast canvas of human activity
connected with the gathering of raw materials, their processing,
manufacture and distribution through the multifarious channels of
trade; at a different level he was unceasingly curious about the
details of the way things are done; he would take an intense
interest in the minutiae of even the most mundane transactions
and he would enthusiastically praise as 'lovely' or 'beautiful' ex-
amples of deftness or of neat solutions to technical problems. His
vision of the world of commerce accommodated not only 'Quin-
quereme of Nineveh from distant Ophir', but also the functional
'beauty' of mill-race and turbine. 62 Secondly, Llewellyn also claimed
that he found a distinct similarity between the world of commerce
and preliterate societies in that each contained relatively simple,
homogeneous groups, which could be studied 'in the round'. Where
the context is relatively simple, and especially where the same
values are widely shared, the study of the relationship between legal
rules and processes and the context of their operation is made
easier. 68
To start with, Llewellyn enjoyed teaching commercial law for
quite a different reason. The course on bills and notes was built
around the Uniform Negotiable Instruments Law, the chief charac-
teristic of which was its technical complexity. At first, Llewellyn took
great pleasure in the quasi-mathematical challenge that it offered,
a challenge to cleverness rather than insight. However, it was not
long before he became dissatisfied with such 'verbal chess games' :64
I hadn't been in it for more than a year and a half when it became clear to
 THE MAN IOI

me that the things I was finding in the cases had very little indeed to do with
what was going on in practice. That came home to me when I started giving
courses to the American Bankers Institute, an outfit that used to train bank
clerks in the law of their subject at night; and when you give courses to
bank clerks, if you are any good, and above all, if you believe in discussion,
you develop shortly a large body of questions that have to do with the things
that have been coming up during the last week and you discover that the
law you are supposedly teaching them, which is derived largely from the
cases, has absolutely or almost nothing to do with the problems that are
crossing their desks. It became clear to me, therefore, that there was no hope
for me to make any headway at all in the investigations I was interested in,
unless I found out what was going on de facto in practice ..•• n

Accordingly Llewellyn decided to gain some practical experience

of his subject before settling down to an academic career. He
secured a position in the legal department of the National City Bank
and in September I 920 he moved to New York, where he remained
for the next two years. Soon after he joined it, the National City
Bank dissolved its legal department and transferred its legal
business to the Wall Street law firm of Shearman and Sterling.66
Llewellyn was also transferred and he continued to work almost
exclusively on the bank's business. Once again he was fortunate. At
Shearman and Sterling he worked directly under the supervision
of William W. Lancaster, who at the age of forty-six was already
recognized as being a leading authority on banking law. 67
Llewellyn worked closely with Lancaster and subsequently he used
to talk of him with gratitude and affection. Not only was Llewellyn
apprenticed to an almost ideal master, but he also happened to start
in practice at a particularly interesting and busy time. The National
City Bank was going through a period of rapid expansion; in the
international sphere there was a flood of suits from Russian refugees
who had deposits at the bank's branch in Petrograd at the time of
the revolution and who from 1919 began to bring suits in New York
to recover the dollar value of their ruble deposits at a rate of ex-
change which greatly favoured them; the collapse of the sugar
industry in Cuba and the depression of 1921 in the United States also
brought in a great deal of varied, non-routine work:
Work boomed. The banks were busy on the legal side due to the losses and
credit tie-ups of the depression. A great number of practices which had
seemed safe while things were good, required revamping in the light of diffi-
culties. Hence the number of matters that came across a man's desk was
102 KARL LLEWELLYN AND THE REALIST MOVEMENT

very large, although the opportunity to dig up the law was correspondingly
limited. 88

Llewellyn was almost entirely concerned with office work, writing

opinions on points of law, advising on whether or not to accept a
particular draft, drafting various kinds of documents, writing
letters, and doing a certain amount of 'creative' work, such as devis-
ing new standard forms. Accordingly, during his time in practice he
was usually faced with situations where the facts were not in
dispute; typically his role was to advise on the safest course of
action on the basis of a prediction of how a court might decide on
the law if the particular facts came before it. On one occasion he
gave Lancaster a memorandum in which he presented an ingenious
and carefully rehearsed legal argument; he was rebuked for wasting
his time and for not concentrating on finding a simple way of
ensuring that the matter never reached the courts. 69 It is likely
that Llewellyn's relative inattention to the problems of fact-finding
(as contrasted with Frank) and his instinctive identification with the
standpoint of the office lawyer stem from the nature of his experi-
ence in practice.
Llewellyn thoroughly enjoyed this period. However, after two
years he decided to return to teaching, despite a financially attrac-
tive offer from his law firm. For a long time he had been interested
in teaching and an academic career had the added attraction
'[that] no other branch of law work seems to give a man time to
stay with a thing until he gets to the bottom of it'. 70 So in 1922 he
returned to Yale with the rank of assistant professor and began his
career as a full-time teacher of law.
Llewellyn did not stay long at Yale. In 1923 he was promoted to
the rank of associate professor and he looked set for a long and
distinguished career in New Haven. However, on 23 February 1924
he married his first wife, Elizabeth Sanford, of Freeport, Illinois, who
was at that time a graduate student in economics at Columbia
University. In order to accommodate his wife's desire to remain
in New York, Llewellyn moved to Columbia Law School, first as
visiting lecturer in 1924, and then with the substantive rank of
associate professor in the following year. For a time he commuted
between New Haven and New York, teaching in both law schools,
but in 1925 he reluctantly severed his formal connection with Yale
and settled in New York, where he stayed until 1951. He continued
 THE WAN 103

to be a frequent visitor to New Haven and he always retained a

warm affection for both Yale College and the law school. More than
once he was invited to return as professor of law but, somewhat
surprisingly, he declined on each occasion. 71
Although personal reasons prompted Llewellyn's move to
Columbia, his transfer had important jurisprudential consequences.
One result was that he became the only leading realist to have had
first-hand experience both of Yale at the critical period from
1914--8 and of Columbia during the eventful years between 1922
and 1933. At Yale, as a student, he was at most an enthusiastic
disciple of the pace-setters; at Columbia he was more actively in-
volved, but, at least up to 1929, he was not counted among the
leaders. During the curriculum discussions he was a member of two
of the most important committees, (business relations and metho-
dology) and he also served with Moore as a subcommittee on
finance and credit and with Oliphant as a subcommittee on market-
ing. He participated energetically in the work of these bodies
and he also submitted a number of memoranda of his own on
general issues. 72 He was in substantial agreement with Moore and
Oliphant in their approach to the reorganization of courses in the
area of 'business relations' and he clearly learned much from them.
Indeed, there is little to suggest that he made at this stage any more
significant contribution than might be expected from a lively and
interested junior colleague working closely with his seniors. However,
Llewellyn's marginal annotations of his personal copies of some
memoranda show that he was far from being an uncritical disciple
of the ideas of Moore and Oliphant, particularly in relation to
'scientific' research. 78 It is also clear that he was in no doubt that
preparation for practice should continue to be the main function of
the undergraduate law degree, the issue on which the discussions
foundered.
Llewellyn's posture during the deanship crisis is less clear.
Yntema recollected that he played 'a minor, but vacillating role' ;7'
Corbin could not remember discussing it with him; 73 the Llewellyn
Papers offer little help and the Columbia archives are closed to out-
siders. Yntema's memory appears to be substantially correct. The
indications are that Llewellyn was probably somewhat ambivalent.
He opposed Smith's appointment, he protested to President Butler
over his manner of handling the affair, but he decided to stay on. 7 e
His failure to resign is said to have alienated Underhill Moore, but
104 KARL LLEWELLYN AND THE REALIST MOVEMENT

the reasons for this are obscure. 77 Llewellyn's motives are also not
entirely clear: according to Corbin he said that it was because the
law school needed him more than ever. However, there is no evidence
that he had any offers from elsewhere at this time; 78 it is quite
possible that he was approached by Yale, but it is highly improb-
able that he would have been willing to join Cook and Oliphant at
Johns Hopkins. Llewellyn was not a supporter of Smith, with whom
he maintained an uneasy relationship for more than twenty-five
years, but neither before nor after the crisis of 1928 did he show
himself to be a particular admirer of Oliphant. He learned much
from the theoretical ideas of Cook, Moore and Oliphant, but he never
espoused their 'scientism'; in view of his strong sense of identifica-
tion with the legal profession, it is virtually unthinkable that he
would have supported any move to convert Columbia into a
research institute. Thus at the time of the crisis Llewellyn was faced
with a dilemma: jurisprudentially he was closer in some respects to
the dissidents, but educationally he was on the other side. What-
ever his motives, Llewellyn stayed on at Columbia, whereas
Oliphant, Moore, Marshall, Yntema and Douglas left.
The curriculum discussions, the deanship crisis and the split
between the Scientists and Prudents constitute the more spectacu-
lar aspects of the background of Llewellyn's early years at Columbia.
He had joined the faculty in 1924 as a specialist in commercial law.
During the next five years this area absorbed most of his energies.
With the exception of a graduate seminar in 'Law and Society', a
cooperative exercise shared with several colleagues, all of his teach-
ing was in commercial subjects. In 1926 he was appointed a
Commissioner on Uniform State Laws, a position he held until he
moved to Chicago. In the same year he became draftsman of the
Uniform Chattel Mortgage Act and the Uniform Trust Receipts
Act. 79 Legislative drafting and the preparation of teaching
materials were his two principal extracurricular activities between
1925 and 1930 and during this period he published relatively little.
Until 1929 jurisprudence carne a poor second to commercial law.
Although as a student Llewellyn had been in close contact with
teachers who were trying to pioneer new methods of legal analysis,
his early work is not characterized by any sharp break with tradi-
tion. Indeed his development as a commercial lawyer between 1918
and 1930 is a good example of the difficulty of breaking away from
a tough taught tradition of doctrinal analysis. Even before he
 THE MAN 105
started teaching he had been conditioned by Sumner and Corbin to
be dissatisfied with the tradition, yet he found himself playing
'clever chess games' with the negotiable instruments law in his
first courses. His two years in practice, undertaken in part as an
antidote to this tendency, did not completely cure him, for in draft-
ing the Uniform Trust Receipts Act he adopted, apparently without
being conscious of it, a style of drafting which he later considered to
be unnecessarily complex. 80
During the 1920s Llewellyn made slow and painful progress in
evolving a different approach. 81 From 1927 to 1930 his main
courses were contracts and sales of personal property, two solidly
'traditional' subjects. The principal arena for his struggle towards
a different approach was his casebook on sales. It reveals clearly
that Llewellyn's break with formalism was the outcome of hard
labour rather than of sudden conversion. 'Five years of struggle gets
one hand free to wave for help.' 82 Corbin had only taken him part
of the way.
Meanwhile his interest in jurisprudence continued to grow, in
part independently of, in part in conjunction with, his work in
commercial law. In fact he published relatively little before 1930,
and a high proportion of his first publications were of a general
nature. In 1925 a paper on 'The Effect of Legal Institutions on
Economics' presaged his interest in interdisciplinary cooperation.
In 1928--g he published articles on legal education, legal research
and law enforcement and between 1923 and 1929 a series of book
reviews reveal his concern with new trends and approaches to legal
education, legal research and law in general. Today these pieces
are mainly interesting as indicia of the state of Llewellyn's intellec-
tual development. Taken on their own they could be misleading,
for several of his most promising lines of enquiry had not yet been
worked up into publishable form.
During the 1920s Llewellyn's work in jurisprudence developed
slowly along three main lines. First, he kept alive his interest in
anthropology and sociology-the Sumnerian strand-through his
participation in a graduate seminar on law in society. Manuscripts
from this period show him struggling towards a general sociological
theory of law, but this remained for the time being the least
developed aspect of his thought. Secondly, from about 1927 he
began to take a sustained interest in the nature of the appellate
judicial process and of case law. He had been in close contact with
106 KARL LLEWELLYN AND THE REALIST MOVEMENT

the pace-setters in this field from the time he was a law student:
Corbin's 'The Law and the Judges' had been seminal for him; Cook
had been his teacher; Cardozo's Storrs Lectures on 'The Nature of
the Judicial Process' were delivered while Llewellyn was-still closely
associated with Yale; the implications for the analysis of judicial
processes of the ideas of Freud and Dewey and behaviourist psy-
chology were beginning to excite a number of law teachers.
Llewellyn could hardly avoid becoming involved. Rather it is a little
surprising that his interest developed so late.
The third main strand of Llewellyn's theoretical concerns in the
late 1920s arose out of his involvement in the curriculum discussions
and their aftermath. Here he matured most quickly, as ideas about
interdisciplinary cooperation, realism and legal education inter-
acted and were submitted to the arduous discipline of applying
them in an area of substantive law which he had already gone a
long way to mastering.
Llewellyn's first project to fall squarely within the area of juris-
prudence developed out of an invitation to spend a semester at
Leipzig as a visiting professor in 1928-g. He chose as his subject for
a series of lectures the operation of case law in the United States. Five
years later an expanded version of these lectures, together with
some illustrative material, was published under the title of
Praejudizienrecht und Rechtsprechung in Amerika. 88 Although it
was intended as an introductory work, the book presented an un-
usually bold and sophisticated account of the practical functioning
of American case law. It contained in elementary form a number of
ideas that Llewellyn was subsequently to develop at great length in
The Common Law Tradition. The ideas were not so much new as
a reminder of the neglected obvious ;8 • they excited some consider-
able interest among German scholars, but the political climate of
the time probably prevented the book from making a greater
impact. 83
This project marked an important stage in Llewellyn's intellectual
development. For the first time he moved out of a single field of
law to look at one phase of the operation of the legal system as a
whole; he began to be interested in the processes and techniques of
judicial decisions, as well as in the doctrines that could be extracted
from them and he began to realize how much general jurispruden-
tial writing was based on the selective use of examples rather than
on the disciplined testing of the hypotheses against the facts of daily
 THE MAN 107

practice. 86 He had taken his first rnajor step as a legal theorist.

Llewellyn was invited to return to Leipzig in 1931. Once again
the prospect of speaking to foreign audiences stimulated him to
move away from the detailed treatment of technical subjects onto
a broader plane. On this second visit he lectured on a variety of
general topics and, while he was still in Germany, he began to
expand one of these lectures into a full-length book, entitled Recht,
Rechtsleben und GeseUschaft (Law, the Life of the Law and
Society). 87 Llewellyn's aim was to follow in the tradition of Ehrlich
and Weber: 'Ehrlich remains unclear; Max Weber, in spite of the
depth and the wealth of his experiences, is extraordinarily inacces-
sible and regards the sociology of law merely as a less important
branch of research.' 8 8
He tried to have the book published in Germany in 1932, but
without success. This work represents Llewellyn's first sustained
attempt to develop a sociological theory of law. He returned to the
subject again and again; some of his ideas in this area appeared in
print, but he never completed for publication a full statement of his
'whole view', as he called it. The context for the most fully devel-
oped version of this aspect of his work was the course on 'Law in
our Society', which will be considered in chapter g. Llewellyn had
arranged to return to Germany in 1962, almost exactly thirty years
after his last visit, and he had planned to give a series of lectures in
publishable form which would contain a final statement of his
position. Unfortunately he died before he was able to execute this
project.
During his time in Germany Llewellyn had close contact with a
number of distinguished German scholars, of whom Nussbaum,
Kantorowicz, Koschaker, Jahrreis and Mitteis are perhaps the best
known outside Germany. He was on intimate terms with Franz Exner,
who was then a young professor of criminal law at Leipzig, and with
a sociologist, Freyer. There is evidence to suggest that his first
thorough reading of Ehrlich and Weber may have been under-
taken during his first visit to Leipzig. He took a general interest in
German civil law and he also made plans for two research projects,
a study of the handling of precedent by the Reichsgericht (the
supreme court of the German Reich) and, jointly with his former
school-friend Hans Lachmund, an analysis of German civil proce-
dure. Neither project was ever completed. In 1931 Llewellyn had
been invited to act as a consultant to the International Institute for
108 KARL LLEWELLYN AND THE REALIST MOVEMENT

the Unification of Law in connection with their project for the

unification of the law of sales. He attended one session of their
deliberations at Rome in March 1932. (His comment was: 'Interest-
ing, laborious, unpractical.') 89 On both visits to Germany Llewellyn
gave lectures at a number of universities, mostly on broad theoret-
ical themes. These lectures were, for the most part, very well
received and helped to strengthen his excellent reputation among
German scholars.
Llewellyn's German schooling and his subsequent connections
with Germany have not surprisingly prompted speculation about the
extent of German influence on his character and thought. It has
been pointed out that some of his ideas have a close affinity with
those of Weber, Ehrlich, Nussbaum and, to a lesser extent, the
Freirechtslehre (free law theories) of Fuchs, !say and again of
Ehrlich. 90 There are features of the Uniform Commercial Code
that will be recognized by lawyers trained in the civil law; Llewellyn
and Ernst Rabel had similar approaches to the law of sales. 91
Others have found 'Germanic' traits in Llewellyn's character, his
prose style, aml his cast of mind.
In this context it is naturally much easier to point to affinity
than to prove influence. That Llewellyn had much in common
with German ~egal scholars of the early twentieth century is not to
be doubted, just as it is obvious that he had many American traits.
However, so far as his general method of approach is concerned
the evidence tends to suggest that he only began to study German
legal and sociological literature seriously in the late 1920s, by which
time the main patterns of his concerns and ideas had been settled.
This is corroborated by Llewellyn's autobiographical accounts of
his intellectual development in which he placed relatively little
stress on his connections with Germany. A more likely explanation
of the affinity is that American sociological jurisprudence, through
Carter, Gray, Holmes and, above all, Pound, had already assimilated
much from German jurists of the nineteenth century, before
Llewellyn took up the subject. It is perhaps significant that several
reviewers of Praejudizienrecht criticized Llewellyn for not paying
sufficient attention to German writings on the jurisprudence of
interests, fact research in law, and the 'free law' theories of judicial
deciding. 92 Almost all Llewellyn's references were to American
works. However, it was the stimulus of having to interpret American
law to foreign audiences that led him to take a sustained look at the
 THE MAN 109
system as a whole from the outside and prompted his first two sub-
stantial works of general theory. These works, written in German,
while he was in close contact with German scholars and German
literature, mark the start of his original contributions to juris-
prudence. From now on he was no longer merely an acolyte of
Corbin, Hohfeld, Cook and Moore, but a fully fledged jurist in his
own right.
The remainder of Llewellyn's career is largely a story of the devel-
opment of his ideas through the medium of his teaching and writings
and such projects as the Uniform Commercial Code. Most of the
relevant details are best considered in later chapters in connection
with particular works. However, it may be useful to complete this
account with a brief survey of the principal events of Llewellyn's
life between I 929 and I 962.
Nineteen hundred and twenty-nine marked another important
turning-point in Llewellyn's career. At the beginning of the
academic year I929-30 he delivered a series of introductory lectures
to first-year law students which were published in the following year
under the title of The Bramble Bush. In the same year he was
appointed the first Betts Professor of Jurisprudence at Columbia.
Not long afterwards the realist controversy broke on the academic
legal world and Llewellyn was in the thick of it. Whereas Cases and
Materials on the Law of Sales, published in I930, excited admira-
tion among commercial law specialists, his articles on realism,
notably 'A Realistic Jurisprudence, The Next Step' and 'Some
Realism about Realism', when taken with The Bramble Bush, gave
him a reputation, together with Jerome Frank, of being iconoclastic
and somewhat intemperate as a jurist.
During the ensuing nine years the formerly unproductive
Llewellyn suddenly became enormously prolific. During the I930s
he published three major books, over twenty substantial articles
and numerous lesser pieces. The great rnajority of published and
unpublished works were concerned with the sociology of law,
contracts and commercial law. This burst of energy coincided with a
period of intense personal unhappiness. His first marriage ended in
divorce in I930 after his wife left him for another man. During the
ensuing years Llewellyn had to struggle continually with alcoholism
and it may well be that the enormous energy which he put into his
professional activities was his way of fighting the unhappiness of
his private life. In an effort to get away from his personal problems
IIO KARL LLEWELLYN AND THE REALIST MOVEMENT

he revisited Leipzig as a guest professor in 193HZ. Before returning

to the United States he made a further tour of Germany, giving
lectures. In 1931 Llewellyn also published privately a book of
poems entitled Put in His Thumb and a companion pamphlet of
lyrics entitled Beach Plums.
In June 1933 he first met a young anthropologist, E. Adamson
Hoebel, who was to collaborate with him on a number of studies of
American Indian law, and in the same month he married Emma
Corstvet who was at that time an assistant professor of sociology at
Yale and an associate of Underhill Moore. The marriage was not a
very easy one and it ended in divorce in 1946.
Llewellyn was also quite active in public affairs during this period.
From 1927 to 1935 he was involved in the furore surrounding the
Sacco-V anzetti case: he organized a petition and broadcast on
behalf of the accused, served as a member of the executive committee
of the Sacco-Vanzetti National League, and after the execution in
1927 he did a considerable amount of preparatory work on a book
about the case, which was never completed.98 Thereafter Llewellyn
was associated with a number of 'liberal' causes: he gave assistance
to the NAACP and, according to one unconfirmed report, he was
one of the first to advocate a strategy of litigation through test cases
as a means of advancing the position of Negroes; 9• in 1934 he made
an abortive entry into politics, running as a candidate for 'the
Knickerbocker Democrats' against the incumbent, James J. Hines,
for membership of the Democratic State Committee (uth District);
his platform was 'clean up Tammany Hall', but although he was the
subject of a certain amount of publicity, he did not make much
headway and, before polling day, he was persuaded to stand down
in favour of a candidate with a similar platform.98 During the 1930s
Llewellyn was also associated with the American Civil Liberties
Union, especially in connection with a campaign to liberalize laws
relating to sedition.98 On more than one occasion at Columbia he
clashed with the university authorities when speakers were banned
from the university campus. After the 1930s he continued to write
and speak occasionally on civil liberties, but he was less actively
involved with liberal causes.97 There was one major exception to
this : his efforts to make legal services more accessible to the poor and
to the lower middle class. In this area he made a significant contri-
bution, and since they are intimately connected with some of his
juristic ideas, his activities will be described in detail below.98
 THE MAN III
The years I936-4o were particularly eventful. In collaboration
with Hoebel he completed a study of the Cheyenne Indians which
was published in I94I as The Cheyenne Way. 99 This was imme-
diately recognized as a major contribution to the anthropological
study of primitive law; the project also stimulated some crucial
advances in Llewellyn's ideas about the sociology of law. In 1937 he
became involved in the campaign for the enactment of a Federal
Sales Act and this led on directly, via work on the Revised Uniform
Sales Act, to the project for a Uniform Commercial Code, which was
to take up a large part of his energies for the next fifteen years. 100
During the same period, 1936 to 1940, Llewellyn published a notable
series of articles on the law of sales, which further consolidated his
reputation as one of the leading commercial lawyers of his day. 101
A third major interest, the judicial process, was also revived at this
time. Borrowing the concept of 'period style' from architecture he
applied it to the study of American state appellate courts in two series
of lectures, one at the University of Chicago on 'The Good, the True
and the Beautiful in Law',102 (I 94 I) and the prestigious Storrs
lectures at Yale on 'The Common Law Tradition' (1941). It was not,
however, until twenty years later, in 1960, that these ideas were fully
developed in print in his jurisprudential magnum opus, The
Common Law Tradition: Deciding Appeals. 108
These three sets of interests blossomed into three major projects
which took up most of Llewellyn's energies, outside teaching, during
the last twenty-two years of his life (194o-62): The Uniform
Commercial Code, The Common Law Tradition, and the develop-
ment of a general sociological theory of law.
Although the 1940s were dominated by the Code project
Llewellyn continued to write on a variety of subjects. During this
period he published articles on jurisprudence, legal education, the
legal profession and commercial law. In 1944 he was chairman of an
Association of American Law Schools committee on curriculum
which produced a notable report on the place of skills in legal
education. 10 ~ In the same year, again in collaboration with Hoebel,
he embarked on another study of American Indians, this time the
Pueblos of New Mexico. Llewellyn spent much more time doing
fieldwork on this project than he had done in the case of the
Cheyennes, but the study was never completed. During his visits to
New Mexico he became actively involved in Pueblo affairs; he
drafted codes for some of the Pueblo councils, he acted in a number
I I2 KARL LLEWELLYN AND THE REALIST MOVEMENT
of cases, and ultimately his interest in Indian affairs led to his
appointment to the Commission on the Rights, Liberties and
Responsibilities of the American Indian (I956).101
By I 949 nearly all the work on preparing the first draft of the
total Code had been completed and Llewellyn had begun once more
to direct his attention to jurisprudence. In that year he was invited
as visiting professor to Harvard, and in addition to teaching
commercial law he took this as an opportunity for developing a new
course on jurisprudence. 106 This course, which he continued to
experiment with during the last twelve years of his life, was the
vehicle for developing his general sociological theory. During the
I 940s too Llewellyn was increasingly called on to participate in the
affairs of the AALS and after a spell on the executive he was installed
as president in December I949. 107
During his latter years at Columbia Llewellyn's relations with
some of his colleagues, and sometimes with his students, had
deteriorated. His work on the Code was -exhausting and although he
did continue to publish a number of scholarly articles, they did not
compare in either originality or quality with much of his work of the
previous decade.
In I946, after a divorce, he married Soia Mentschikoff, who had
been his student, research assistant and Associate Chief Reporter on
the Code. During the period I94I-8 she had established a reputation
as an outstanding commercial lawyer in her own right and in I947
she had the honour of being the first woman ever to be invited to
teach at Harvard Law School. 108 Llewellyn resigned from
Columbia in 1951, after he and his wife had accepted a joint
appointment at the University of Chicago Law School. His main
reason for moving to Chicago was that he thought that the law
school, under Dean Edward Levi, whom he greatly admired, prom-
ised to become the first in the mid-west seriously to challenge the
dominance of the great schools of the eastern seaboard. 109
The move to Chicago was a success and some of Llewellyn's old
intellectual vigour which some thought he had lost in the 1940s was
recaptured during his last ten years of teaching. Although he was
still officially Chief Reporter on the Uniform Commercial Code,
after 1952 his main contribution to that project had been made, and
he devoted most of his attention to jurisprudence. Llewellyn died of
a heart attack on 13 February 1962. In an obituary Dean Levi gave
this account of his final period:
 THE MAN 113
Karl's many-sidedness was reflected in the radius of his influence at Chicago.
He had done much of the pioneering work on the relationships between law
and sociology and law and economics. At Chicago he gave the protection of
his boldness to the law and behavioral science program and the guidance of
his insights gained from his seminal study of the creative power of the sense
of justice reflected in the law ways of an Indian tribe. He had played a
leading role in the great disputes on legal realism. His Bramble Bush was a
classic. The students at Chicago received from him a more sophisticated and
mature view of law but with the same fire and poetry. When he came to
Chicago, his knowledge of commercial law was prodigious; his major task
of fashioning the Uniform Commercial Code was near completion. His
influence was strong for instruction in draftsmanship. His concern for
instruction in the skills of the craft produced the course in advocacy, which
he taught, and gave impetus to student work in moot court and legal aid.
Karl was interested in the organizations of the bar. He was interested in
many law schools. I think it is right to say he was in love with Chicago. He
was enormously stimulated by the exciting atmosphere of the school close
to the bar and judiciary and yet so much an integral part of a university
with an unparalleled tradition and practice of interdisciplinary research .••
• . . In the last year of his life, his book The Common Law Tradition: Deciding
Appeals was published. It was the great work which he knew he had in him.
Before his death he had been told the book had been voted the Henry M.
Phillips prize given by the American Philosophical Society. Eight days
before his death he had finished the preface to a collection of his essays since
published under the title Jurisprudmce: Realism in Theory and Practice. His last
year of law teaching was perhaps his best. The barrier between teacher and
student was low; the creative power of the teaching was strong. He did not
regard his work as finished. He still had before him a work on law in
society.uo

Llewellyn had been invited to lecture in Germany in 1962, and

he had planned to make this the occasion for a final statement of his
juristic views. His untimely death left a serious lacuna in that there
is no single published piece, either by Llewellyn or anyone else,
which sets out his basic ideas as a reasonably coherent whole. To
meet this need is one of the aims of the present work.

THE MAN AND HIS WORK

This bare resume of Llewellyn's career conveys little of his personal

qualities. In fact he imprinted his personality on everything he did,
and even if it were desirable, it would be virtually impossible to ex-
clude the strong flavour of the Llewellynesque from any study of
Il4 KARL LLEWELLYN AND THE REALIST MOVEMENT

his work. Few people could be indifferent to Karl Llewellyn. He

frequently stimulated admiration and enthusiasm, but there were
also non-enthusiasts. There is some consistency in the respective
reactions of those who were definite Karlo-phobes or Karlo-philes.
The former tended to consider him a vulgar exhibitionist, some-
times brash and insensitive, sometimes perverse, lacking in self-
discipline and too erratic to be taken seriously. His admirers tended
to emphasize his combination of humanity and brilliance: warm-
hearted, gay, tolerant, uninhibited and vital as a person, stimulating
and inspiring as a teacher, perspicacious and wise as a thinker.
Taken together such judgments suggest a volatile genius. There is
truth in this image, but on its own it is too facile.
There is a strange aura about Llewellyn's writings which is unique
in juristic literature. It fascinates some readers, repels others and
perplexes most. This strangeness is often attributed to his prose
style, which at its best is picturesque and memorable, but is often
mannered, irritating and obscure. His use of language is idiosyn-
cratic but it is quite clear that by itself Llewellynese does not explain
the Llewellynesque. It is beyond my competence to try to emulate
the brave biographer who seeks to give a rounded account of the
relationship between the personality and the ideas of his subject.
The pitfalls are too many and this study is, in any event, not in-
tended to be in any sense a 'complete' biography. However, there
are two aspects of Llewellyn's private life which have a direct bear-
ing on his work as a jurist: his supposed 'artistic' qualities and his
personal credo. Before these are considered, it may be of interest to
quote from some personal impressions that I recorded of Llewellyn
on the basis of my experience of him as a pupil in I 95 7-8· and when
I put his papers in order in 1963-4:
English friends who had been to the United States had emphasized the
bizarre: the only American ever to have been awarded the Iron Cross; joint
organizer of a vt:rse competition for law students; histrionics in the class-
room; eulogies of the 'beauty' of the letter of credit. First impressions did
not quite fit this picture; a stocky man with fierce eyebrows and a limp;
traces of a parade-ground manner (trying to frighten me?); primarily
interested in how much of his work I had read; embarrassing questions
about negotiable instruments. Not quite the reception that an Oxford man
expects. We exchanged writings. I gave him my proposals for a very ambi-
tious research project. He gave me a bundle of his articles and teaching
materials and sent me away. I scampered over rather than through these,
 THE MAN 115

selected the first paragraph of one and wrote several pages of detailed
analytical notes, mostly in the form of questions about his use of language.
About three days later I returned rather pleased with myself to Llewellyn's
office. He was surprised to see me. Had I read all that he had given me?
Indeed, and here were some critical comments. A few probing questions
showed up the extent of my incomprehension. I was sent back to re-read the
assignment. Shortly afterward my pieces were returned, covered with
annotations which were in some instances longer than the original text.
Expletives, enthusiastic praise for points which had seemed to me so
obvious as to be hardly worth mentioning and, repeatedly, questions
challenging rigid dichotomies, precise boundary-drawing and ali-or-
nothing assertions.* My main concern had been with language; Llewellyn
met my challenges head-on with a precision and a linguistic sophistication
which, in my arrogance, I had not anticipated.
At our next meeting he diagnosed sympathetically, but with devastating
accuracy, exactly what had been going wrong. He then produced some
photographs. The first series depicted carvings made with the help of only
one tool, the adze. They were crude, but powerful and expressive - works
of art by men who were masters of their medium. The second series also
depicted carvings - less crude, but obviously inferior as works of art. These,
said Llewellyn, were by craftsmen working in the same tradition shortly
after the introduction of the chisel. In their enthusiasm for the new, more
refined tool, they had jettisoned the adze completely with most unfortunate
results. What lessons could I learn from this which would be applicable to
jurisprudence? Mter some discussion, he summed up with a statement that I
can render almost verbatim: 'Son, you've been staking all your savings on a
horse that is not yet even ready to start. Let him alone for a while and go
back to him later.' Both diagnosis and prescription proved to be sound.
Throughout my contact with him Llewellyn revealed these same qualities
as a teacher; pains taken over marking written work; interest in his students
as individuals; an uncanny capacity to spot intellectual strengths and weak-
nesses and to build on the strengths; and the use of vivid metaphor or
analogy to make a point unforgettable. That my experience was by no
means unique is confirmed by the testimony of many of his former pupils
and by the heavily annotated student papers which are to be found in the
coUection.
In his lectures on jurisprudence Llewellyn's spectacular side was more in

• Cf.' "And-Not" is bad Jurisprudence. In observation of any social scene, the

complexity of material makes any exclusively single ·attribute or sequence highly
improbable. "And-not" is the traditional bane of sound Jurisprudence (and of lay
thinking in general): "Because it is A it is therefore not B" presupposes a thoroughly
explored, exactly defined area of discussion, divided accurately and exhaustively
into A and not A- which the current social scene almost never is.' Llewellyn,
Law in Our Society (unpublished course materials), p. 35·
II6 KARL LLEWELLYN AND THE REALIST MOVEMENT

evidence. He pounded the table with his fist, he employed rhetorical devices,
he insisted on being well supplied with colored chalk, and he imported into
the classroom flowers and Gothic spoons and photographs of cathedrals as
visual aids. However his reputation for histrionics had been much exag-
gerated, and, in this course at least, he was far from being the 'strutting
player' that some students had depicted. Indeed his lectures were rambling
discourses, delivered for the most part in a dry tone and notable as much for
satirical touches as for rhetorical flourishes; a large part of my notes consists
of provocative aphorisms, copied down verbatim, of which the following are
examples:
When you stood around when Cicero made a speech you said: 'No
mortal man is so eloquent.' When you stood around when Demosthenes
made a speech, you said: 'WAR!'
Traditional jurisprudence is the only known pursuit of man from which
both sides invariably emerge victorious.
The last thirty-five years of jurisprudence have made clear the quantum
of leeway to too many lawyers who will become judges. The last thirty-five
years have not, in Law School, made clear the narrow limits of the leeway.
The whole history of the English constitution could be written in terms
of pressure of work.
Doctrine brittle and neat is the tool of tender minds in pursuit of policy
that can be embraced without using one's intellect.
Technique without ideals is a menace; ideals without technique are a
mess.*
Jurisprudence was one of his most successful courses. Early on Lewellyn
would make the startling claim that he considered it to be 'the best bread-
and-butter course' and 'the one with the most immediate practicality' of any
course in Law School. 'This is an arrogant position which I sustain without
hesitation and loudly.' 'It is also in my opinion the deepest theoretical
course • • • and that is because it is the only course given in this school,
which reaches for simplicity, consistently and essentially...• And the
deepest theory, at least in matters of law, is the deepest simplicity.'t
Philosophy as 'contemporaneous polysyllabic professionalized academic
discipline' had no place in the course; 'in contrast what is here sought is
old-fashioned non-professional "philosophy": general serviceable life-
wisdom about some body of material and its homely but basic meaning for
life and for man.' § A student's failure to grasp this provoked the only out-
burst of anger by Llewellyn that I ever witnessed. We were required to do a
weekly paper 'on anything to do with the course'. One member of the class

• This was one of Llewellyn's favorite aphorisms. Cf., e.g., 'The Adventures of
Rollo', U. Chi. Law School Record, Vol. 2, No. x, pp. 3, 23 (1952).
t The exact words are taken from the transcripts of Llewellyn's Jurisprudence
Lectures of 1956, §I, pp. 5-7.
§Law in Our Society, op. cit., n. 3, p. 8.
 THE MAN 117

had submitted a paper on the Kantian distinction between the 'is' and the
'ought,' a fairly conventional topic. Llewellyn exploded. 'What the hell,'
he thundered, 'has Kant to do with my course on Jurisprudence?' And, as
the class sat in shocked silence, he ranted and raved for several minutes at
the poor student, without giving him a chance to defend himself. If this was
not genuine rage, it was certainly a convincing performance.
Llewellyn made a further claim: 'I hold that what we do here is not only
of application in your professional life, which it is most vigorously, but in
your daily life.'* A fundamental objective of the course was to get students
to relate their thinking about law to their thinking about life in general. To
this end he encouraged them to draw continually on their own experience
for material for the weekly papers. For example, one assignment was to take
his theory of the function of law {'the law jobs' theory), t which is really a
theory about the nature of human groups in general, and to test it out
against any group, family, school, boys' camp, submarine, of which the
writer of the essay had had firsthand experience. Married students were
encouraged to draw analogies between problems of regulating their family
life and similar problems in society as a whole. I found myself writing,
inter alia, about beehives, a self-help scheme in East Mrica, and walking in
the Lake District, and in the process rediscovering a lot of things that I knew
already and for the first time ever relating them to my thinking about law.
An impressive number of students who experienced this course have testified
to its lasting influence on them, and several have acknowledged that it was
indeed the most 'practical', in the sense of having the most direct application
to their daily work as lawyers, of all the courses that they took in Law School.
All Llewellyn's courses were unorthodox, and in all he was essentially
trying to teach a way of approaching lawyers' problems. But the roles in
which he cast himself varied: in Elements he was inclined to be the stern
taskmaster, particularly emphasizing the need for solid craftsmanship as a
basis for any work in law; in Sales he was more the scholar who had
managed to combine deep learning with a firm grasp of the realities of
business practice; at almost any time the evangelist might take over, at his
best infecting his audience with some of his enthusiasm for the law and his
concern for decency and justice....110 •

THE HALF-WAY ARTIST

'The law', said Holmes, 'is not the place for the artist or the poet.
The law is the calling of thinkers'. 111 Lawyers seeking a simple
explanation of the strange phenomenon in their midst were inclined
to say of Llewellyn: 'Oh well, he's a poet'; this, if facile, is not
* Op. cit., § II, p. 18.
t See, e.g., The Cheyenne Way (1941), ch. xi.
II8 KARL LLEWELLYN AND THE REALIST MOVEMENT

entirely misleading. But it is not enough. Other successful lawyers

have written poetry or have been accomplished musicians or
connoisseurs of the arts or have contributed to literature even when
writing about law. They may have been unusual; Llewellyn was
unique.
Llewellyn's interests and activities gave colour to the image of him
as a poet or artist. At one time or another he applied himself with his
usual enthusiasm to writing stories, science fiction, plays for child-
ren, satire, self-parody, ballads and verse of varied style and qual-
ity.112 In 1931 he published two collections of poems; during the
rest of his life he continued to write occasional light verse about cats
and colleagues and camping and trees and jurisprudence and judges
and many other subjects. After his death a poem entitled 'Njal
Invokes Justice',118 written in both German and English, was found
among the papers on his desk; in most of his legal books he included
at least one specimen of his verse; he enlivened gatherings of law
teachers by leading singing sessions, which often included one or two
Llewellyniana - the best known being his ballad in praise of 'The
Common Law Tradition•.m At one period he took up clay model-
ling and wood carving, at another he dabbled in painting. He had
some facility as a cartoonist. His insatiable curiosity led him to take
an interest in many of the arts, but only in respect of Gothic architec-
ture could he have made any serious claim to expertise.
Llewellyn did not take himself very seriously as a poet. He
wrote verse rather than poetry and put most of it in the category of
'art-for-fun'. In the preface of Put in His Thumb he spoke of 'ballads
that creak, sonnets that sacrifice music to meaning, meaning some-
times buried in obscure expressions' .115 An early lyric repeats the
theme:

BARRIER

I would make you songs, lady

make your heart sing,
songs sweet as peach blossom,
fragrant as spring.

I would make you songs, lady

each little while -
laughing lilting little lays,
would make your eyes smile.
 THE MAN 119

I would sing you the heart of things,

winnow away the chaff-
I would make you songs, lady -
but you would laugh.n•
Many of his lighter verses and songs concerned law:
LAMENT ON WHAT'S WRONG WITH OUR LAW
(Tune: Unidentified but sad)
It's A is the source of the trouble
It's A is the guy who gets me
And not till I die will I ever see why
The courts don't give judgment for B.

It's A is the man with the offer

The 'master' of 'promise for act'
And then he revokes with his loud and lewd jokes
In time to keep out of the pact.

When 'A says to B', B's in trouble

You ought to feel sorry for B
B won't catch him ever, old A is too clever -
And meanwhile he's out rooking P.

For A has 'apparent authority'

And A goes on hogging the swag
While poor trusting P, just a fellow like me,
Is always left holding the bag.

You'll find A indicted for thieving,

For murder, for crimes about sex
But he gets the breaks with the bad law he makes
Along with his buddy, that X.

Our law could be perfect tomorrow

Our law could be better today
If every last court of final resort
Would just put the skids under A.11 7

These examples may help to give some perspective to the idea of

Llewellyn as a poet. He was capable of writing pleasant pieces, but
no great talents await discovery.
Llewellyn's prose also exposes both his potentialities and his
limitations as an artist. He laboured, perhaps too self-consciously,
120 KARL LLEWELLYN AND THE REALIST MOVEMENT

to write well. The results were only occasionally successful; some-

times they were disastrous. Indeed, no other aspect of his work is
more likely to swell the ranks of the Karlo-phobes, especially if the
variety of his styles is overlooked. The most striking feature is the
vocabulary: there is an uninhibited use of slang and neologisms;
terms, not always elegant, are freely minted ('jurisprude', 'law-stuff',
'situation sense', skelegal'); nouns are transformed into verbs ('to
lawyer'; 'to poultice'), there is frequent resort to metaphor, some-
times mixed, often vivid, but equally often somewhat imprecise; rigid
dichotomies are eschewed; the grammar is sometimes idiosyncratic.118
He shared Holmes' taste for aphorism and Carlyle's for hyphenated
words. Indeed, Llewellyn's style is sometimes compared with that
of Thomas Carlyle. 119 The comparison is apt, but dangerous. What
Woodward said of Carlyle is applicable to some works, like The
Common Law Tradition : 'His English style had many of the
faults which he attributed to Parliaments. It was verbose, egoistical,
noisy, full of repetition and overstatement.' 120 Yet the writings
of both authors are exceptionally quotable, abounding with pithy
epigrams and striking phrases. The outcome is a disorderly
profusion, richness not matched by a corresponding discipline and
sense of form. That Llewellyn is reminiscent of Carlyle is not entirely
a coincidence. At college he had admired Sartor Resartus and On
Heroes and Hero-Worship; 121 as an adult, when he wanted to
step beyond conventional bounds of juristic propriety, he adopted
the pseudonym of Carlyle's creation, Teufelsdrockh, the Philosopher
of [the] Clothes. 122 The original Teufelsdrockh provided his creator
with a convenient outlet for self-parody and semi-serious fantasy;
the character of Diogenes Jonathan Swift Teufelsdrockh performed
a similar function for Llewellyn. In each case, too, the device seems
to have misfired in that the conscious humour proved heavy and
awkward, while the self-parody sometimes cuts deeper than the
author probably intended.
In fact Llewellyn had not one style, but several. In some works,
especially those which began as lectures, such as The Bramble Bush,
the sentences tended to be short and crisp, sometimes without a verb.
Some such passages, deprived of the gestures and variations in tone
which accompanied their delivery, may seem awkward to the reader,
but others are effective and memorable. The 'oral style' is usually
quite easy to understand. This is not true of some of the serious
jurisprudential writings, in which too often long sentences meander
 THE MAN 121

learnedly through provisos and dependent clauses, inappropriately

decked in metaphors and colloquialisms-an unhappy marriage
between a German pedant and a vulgar Brooklyn floozy. Llewellyn's
touch seems to have been surer when he wrote on commercial sub-
jects; here he often successfuly combined cool professionalism with
flashes which are vivid and amusing. Unfortunately the manner of
presentation is not a reliable indicator of the quality of the sub-
stance, for some of Llewellyn's most important thoughts appear in
some of his least readable writings. 128 In short, his prose style was
as complex and as varied as his character.
Llewellyn's writings do not suggest unfaltering judgment and
taste in literary matters. He disclaimed any such thing:
I am a barbarian, a primitive, in my tastes in art. The Everlasting Mercy is my
idea of poetry, especially the fight-part and the passages where Saul Kane
thinks of youngsters. Action and directness and simplicity: almost a folksong.
And I like drama; that's a primitive taste, too. O'Neill's Hairy Ape and the
heroic exaggerations of Shakespeare - Macbeth more than Hamlet. And
stories: the Volsung Saga, and Samson, and Treasure Island (I read that
over every birthday); and adventure and detective yarns when not too
badly written. All that, I take it, shows a paleolithic taste, a taste sound
enough as far as it goes, but unrefined, crude, savage. Shelley doesn't thrill
me, nor Swinburne; nor Villon, very much. So that if I should speak of
drama in the large, you would understand that my opinions, even if based
on vastly wider reading, would be notably lop-sided. But I claim that their
very bias makes them sound, when applied not to grown-ups (God pity
them), but to other kids. If my development in literature and every other
art has been stunted at the kid stage, so much the more authority to my
views on art for kids. 1 u
This passage appears in an unpublished essay on producing plays
for children. The context may explain the exaggerated note of self-
deprecation, but the confession is basically convincing. Llewellyn
was not especially well-read for an intellectual and he had a decided
taste for the folksy, not only in literature. In philosophy he preferred
Ben Franklin to Hegel; he liked orchards and village craftsmen and
Maine fishermen and sages like Will Rogers and Mr Dooley. His
humour tended to be earthy and unsophisticated.123
If Llewellyn's performance as a poet or litterateur need not be
taken too seriously the artistic side of his nature should not be
ignored. It affected his approach to almost everything. In this
context 'artistic' refers not only to his emotional intensity and
general volatility, but also to his cast of mind. He seemed to work at
122 KARL LLEWELLYN AND THE REALIST MOVEMENT

least as much by intuition and imagination as by conscious reason-

ing and analysis. He thought, says Soia Mentschikoff, in 'Gestalts';
some of the less disciplined passages in his writings give the impres-
sion that the author is proceeding by free association. He would
react with excitement to seemingly obvious ideas and he would give
to even the most mundane of transactions an aura of romanticism;
he rhapsodized about the 'beauty' of the letter of credit, praised
judgments for their loveliness, and his vision of the world of
commerce was often more in the spirit of Masefield's 'Cargoes' than
of The Wall Street Journal. Who else would have been so quick to
recognize a certain deftness in the Cheyennes' handling of conflict
or, having done so, would have concluded a work of anthropo-
logical scholarship with what has been aptly termed 'almost a prose
poem in praise of the Cheyenne juristic method'? 126 To many
lawyers such romanticism may seem inappropriate, even distasteful;
but for Llewellyn it was a natural way of seeing law and commerce
as part and parcel of his general world view.
Of all Llewellyn's 'artistic' qualities, the most highly developed
was his capacity for quick intuitive perception. In personal relations
he was able to attain immediate rapport with a wide variety of
people-small town lawyers, leaders of the bar, painters, bankers,
students,- although on occasion he could also be quite insensitive
to the feelings of others. His rapport with American Indians was
quite remarkable. He was fascinated by human institutions and
transactions and he had an uncanny capacity for getting the feel for
the point of view of ordinary participants and their ways of going
about their work. 127 His well-known grasp of business practice was
based partly on his insatiable interest in the details of the subject
(always with an eye for the significant pattern) and partly on this
capacity for intuitively sensing what was not fully articulated. 128
It is easy to see how Llewellyn got the reputation for being an
artist abroad in the law. He was interested in the arts, not only as a
dilettante spectator, but also as an enthusiastic if not entirely success-
ful performer, and he had qualities which are commonly associated
with an artistic temperament. The unusual feature was that he
gave an extraordinarily free rein to his interests and temperament
in his legal work. He frequently resorted to analogies from the arts
in his legal writings; concepts such as 'style' and 'craft' played an
important part in his jurisprudence and he even expounded a theory
of legal aesthetics. Idiosyncratic prose, bursts of uninhibited
 THE MAN 123

enthusiasm, a tendency to self-dramatization, and a romantic

imagination do not fit in well with the stereotype of the lawyer,
conservative, unemotional, cautious, and generally prosaic. Small
wonder, then, that some have been tempted to add to the assertion
'he's a poet', an assumed corollary, 'not a lawyer'. They have been
mistaken. For Llewellyn was at least as much a lawyer as he was an
artist. He loved the law, he was learned in it, he identified himself
with the legal profession to a marked extent, he had outstanding
grades as a law student, his record in practice was excellent, and he
became one of the leading commercial lawyers of his time.m
To conclude: applied to Llewellyn Holmes' dictum pinpoints a
puzzle, but fails to resolve it. 'He was a poet, not a lawyer' suggests
a false antithesis,-implying that intuition, imagination and depth of
feeling have nothing to contribute to law, and are inconsistent with
the qualities which go to make a good lawyer. This is as foolish and
misleading as the discredited idea that imagination and intuition
have no part to play in science. In so intellectualized and tough a
milieu as law they are not easily accommodated; for this very reason
they have the additional value of scarcity. Llewellyn approached
most subjects on a number of different levels simultaneously and
this helps to explain some of the strangeness about his work. It must
be admitted that he was not always successful and the results were
sometimes awkward; but it must equally be admitted that such
success as he had was in no small part due to his 'artistic' qual-
ities.180 Furthermore, his highly personal style gives more scope for
differences of taste than do most juristic writings. He had in almost
equal measure the capacity to excite and to repel. One of the prob-
lems of making a sober appraisal of his contribution to juristic
thought is to discount as largely irrelevant excesses of enthusiasm
and revulsion stemming from the differing tastes of Karlo-philes and
Karlo-phobes.

RELIGION AND IDEOLOGY

Llewellyn's non-conformist upbringing and his adolescent reaction
to it have already been noted. For most of his adult life his religious
views probably reflected some inner conflict. He believed in God,
but he had a marked antipathy towards organized religion; he was
suspicious of dogmas and was a professed relativist in ethics, yet for
over thirty years he flirted with Natural Law, emotionally attracted
124 KARL LLEWELLYN AND THE REALIST MOVEMENT

by it, yet intellectually sceptical. 131 At various times he gave serious

consideration to becoming a member of the Roman Catholic or the
Russian Orthodox Church. He felt a strong need 'to join up', as he
put it, but equally strongly he wanted no human machinery inter-
posed between himself and God. At some time in the early I 940s
he had a religious experience, 'a direct intimation of God'. 182 In
1943 he tried to sort out his ideas on paper and came to the conclu-
sion that he wished 'to have a Catholic connection without paying
a right Catholic price' .188 He did not 'join up' on this occasion,
nor thereafter, but he continued to be preoccupied with religious
questions, especially just before his death.
Llewellyn never resolved his religious dilemmas. In his later years
in Chicago he moved even closer to Roman Catholicism: he took
to questioning Catholics about their beliefs, St Thomas featured more
prominently in his jurisprudence course, he tried to convert some
of his friends, and a few days before he died he began to draft a
circular letter to Roman Catholic law teachers taking them to task
for poor public relations in spreading the message of their faith. 184
But he never reached the stage of seeking formal instruction
preparatory to being received into the Roman Church and there is
little evidence to suggest that his views had changed sufficiently from
1943 to make such a step feasible or even credible. His distrust of
dogmatism, his ethical relativism and his general attitude to human
institutions and human authority would have been formidable, if
not insurmountable, obstacles. Perhaps the crux of the matter is a
paradox: as a student of institutions, he was especially attracted to
Rome through his admiration for the Catholic Church as an institu-
tion- the whole apparatus of organization, personnel, skills, ritual
and even dogma-yet, like Shaw's St Joan, he could not accept any
intermediary between himself and God.
Llewellyn's attitude to religion changed several times during his
lifetime; his position on social and political issues was probably more
constant, but he appears to have created a widespread impression
that he tended to be ambivalent or indifferent to such matters. At
first sight there does appear to be a pattern: for example, in the
first world war he was prepared to change sides;m although an
active supporter of the NAACP and the ACLU until about 1940
and a professed opponent of racial segregation, his friends were
surprised by his lukewarm reaction when an attempt was made with-
in the AALS to attack racial discrimination in southern law
 THE MAN 1!25

schools; 138 during the New Deal he appeared to sit on the fence,
when many of his friends and colleagues (including several realists)
committed themselves wholeheartedly to the cause; some of his
academic colleagues who worked with him on the Uniform Commer-
cial Code felt that he was too ready to compromise on issues relating
to consumer protection; 187 and others, including his collaborator
Hoebel, found it difficult to see how he could reconcile his enthus-
iasm for the 'authoritarian gerontocracy' of the Pueblos with the
image of an 'American liberal democrat'.188 Finally, while only
the most imperceptive and ignorant of critics could seriously accuse
Llewellyn of being indifferent to values in his jurisprudence or of
believing that Might is Right, some thoughtful scholars have found
it difficult to identify precise principles to which he was prepared to
commit himself wholeheartedly, and they could point out that in
articulating goals he tended to take refuge in notoriously vague
terms- justice, wisdom, decency and fairness. In short, it may be
asked, was Llewellyn as truly 'liberal' as he professed to be?
While this doubt cannot be completely resolved, it is possible to
argue that Llewellyn's reactions to political or ideological issues were
really quite consistent for so emotional and intuitive a person. 119
First, allowance must be made for his strong antidoctrinaire tenden-
cies. Like Holmes and Dewey he preferred to leave his ultimate
values 'unstressed and implicit', ao and his reasons for doing so
were very similar to theirs. Some of the examples cited in the last
paragraph could be used as an index of sophistication rather than of
caprice: it can be pointed out that on the issue of racial discrimina-
tion in legal education he advanced some practical reasons for being
doubtful about the proposed measure, while expressing his general
sympathy with the cause; 1 n that in his approach to the Uniform
Commercial Code and the problems of the Pueblos he clearly saw the
presence of conflicting interests; that scattered throughout the
Uniform Commercial Code are a number of starting points for the
judicial development of doctrines favouring consumers ;142 that he
worked actively to introduce certain basic civil liberties (such as the
concept of a fair hearing) into the traditional Pueblo system ;as
and that his attitude to Natural Law was sympathetic, subtle and
consistent over time. 144 In short it can be argued that Llewellyn was
usually intellectually consistent in ~is suspicion of broad abstract
formulas and in his refusal to be dogmatic, while being emotionally
126 KARL LLEWELLYN AND 'l'HE REALIST MOVEMENT

constant in his sympathy for the underdog and in his loyalty to his
basic ethos.
What was that ethos? Llewellyn's 'liberalism' was the old-
fashioned liberalism of John Adams or of some of the leaders of the
New York bar, such as C. C. Burlingham. He believed deeply in
certain basic liberties (especially equality of opportunity, freedom
of speech and association, and procedural due process),145 but
equally in the responsibility of the individual to make the most of his
opportunities ('Give a man a chance and then it is up to him;). He
was opposed to what he considered the sentimental liberalism of
those who acted as if the underdog is always right, and to the pater-
nalism of some of the welfare-minded New Dealers and of those
who wanted to impose the American way of life on the 'American'
Indians. He was also much concerned with efficiency: no measure,
however well-intentioned, was worth fighting for unless it had a
good prospect of working. Thus he was prepared to hold back,
where others might feel that he was being 'unprincipled', because
he did not believe in ignoring considerations of feasibility in his
pursuit of what he considered to be desirable. 148 Thus, in this view,
during his working life Llewellyn was a pragmatic, old-fashioned,
American liberal, whose most important operative values were
equality of opportunity, individual responsibility and efficiency.

CONCLUSION
A Chicago colleague once referred to Llewellyn as 'that extraordinary
piece of radio-active material abroad in the Law School world for
over forty years'. This is a better summary than most, if any sum-
mary is possible. The aim of this chapter has been to provide little
more than an introductory sketch of Llewellyn's life and character
and to pin-point certain features that may have had a direct bearing
on his approach to jurisprudence and to law. In the chapters which
follow there will be further glimpses of Llewellyn in action, in the
campaign for the Uniform Commercial Code, in his dealings with
American Indians, and in the class-room; frequent quotations from
his writings will be a constant reminder of the man, but from now
on it will be his ideas rather than his personality that will be the
centre of attention.
Like any other thinker of substance, Llewellyn's ideas developed
and changed over the years. However, his most important works
 THE MAN 127

were written after the main lines of his thought had been settled.m
Some commentators notwithstanding, The Common Law Tradition
(1g6o) marks no sharp break from The Bramble Bush (1930). There
is a difference of mood and style, but no significant volte-face.
Since Llewellyn tended to have several projects going simultane-
ously, it would not be sensible to attempt to deal with them in a
strictly chronological order. However, the most important advances
in his thinking will be indicated.
Wherever possible, in order to avoid repetition, Llewellyn's ideas
on a particular topic are dealt with thematically in connection
with a single work. For instance, his miscellaneous writings on prece-
dent and case law are treated together in the chapter on The
Common Law Tradition. Five works have been given special
prominence: Cases and Materials on the Law of Sales, The
Cheyenne Way, the Uniform Commercial Code, The Common Law
Tradition, and the manuscript of Law in Our Society. The chapters
on these, and the shorter sections on other particular works, such as
The Bramble Bush, have been written as largely self-contained
essays, in the hope that this may facilitate their use as introductory
guides to the originals.
7
Two Early Works

The interdependence of teaching and research is an article of faith

for many university teachers. In practice the conjunction of the two
activities can act either as a brake or as a stimulus to the advance-
ment of learning or the interaction can be more complex. Karl
Llewellyn was a dedicated teacher, especially during the first part
of his career. Apart from his verse, his first three books were all
ostensibly addressed to students. In each case, however, this fact had
curiously different results. Cases and Materials on the Law of Sales
is a remarkable example of an undergraduate course book which
is based on learning and insight worthy of a major treatise. In The
Bramble Bush Llewellyn threw aside scholarly inhibitions in an
attempt to excite the interest of first-year students, only to find that
he had thereby attracted an unwelcome amount of so-called
'scholarly' attention. His German book on case law in America looks
more like a book of materials for a course (and this was in part its
origin) than a scholarly monograph, yet it was published for the
benefit of, and was probably mainly read by, established German
scholars.
Llewellyn's ideas on case law are best considered in connection
with The Common Law Tradition. In this chapter Cases and
Materials on the Law of Sales and The Bramble Bush will be dis-
cussed in turn. Each in its way marks an important stage in the
development of his thought, but in both instances the author's
educational objectives determined the manner of the presentation
of his ideas.

CASES AND MATERIALS ON THE LAW OF SALES

Llewellyn's first work of substance, Cases and Materials on the Law
of Sales, grew directly out of the Columbia curriculum discussions.
 TWO EAR.LY WOR.KS 129

It was preceded by a series of reviews of casebooks, in which he tried

to develop his ideas about what constituted suitable materials for
the study of law. It is fitting that what might be called his first
articulation of a realist position is to be found in the last of this
sequence, a review of Campbell's Cases on Mortgages of Real
Property. 1 The passage shows clearly the connection between
Llewellyn's concern about problems of teaching and his jurispruden-
tial ideas:
The reviewer holds that the time has passed when the study of law could
profitably be centered on legal doctrine. At the present juncture the only
serviceable focus oflaw study is law-in-action; law-in-action not only in the
sense of Dean Pound's well known article: what the courts and all quasi-
judicial bodies actually do; but also in Ehrlich's sense: the actual ordering
of men's actions.
I do not wish to be misunderstood on this point. I do not say that the
study of legal doctrine should be discarded. Doctrinal formulas, even when
patently untrue to the cases, repeatedly influence results. Concepts- which
are but summaries of doctrine - repeatedly produce decisions, sometimes in
the teeth of good sense. Received formulas, good or bad, therefore need
study. The traditional patterns of the law - such as 'mortgage' - now block
growth, now direct its course; the lawyer needs to know this, and to be
familiar with the patterns. But I do say that the role of such doctrines and
concepts is vastly less important than our current teaching would suggest.
Holmes has long made us familiar with the proposition that a rule is merely
a prediction of what a court will do. Courts are continually arriving at
results 'unsound on principle' - but pretty sane on the facts. Even more
often, they are arriving at results we approve, in cases which 'might better
have been put on other grounds'. Meantime psychologists have been
arguing that men decide matters first - on emotional grounds - and
rationalize them afterwards - in opinions. Doctrine, if it is to mean - or
lead to - accurate prediction, must be in terms of what courts do; and of
what they say only so far as a connection is demonstrated between what
they say and what they do. And when all allowance has been made for
judicial conservatism, for the technical ritual of the law, for judicial
ignorance, the fact remains that everywhere, and especially in the business
field, what courts have done and will do is, in the main, understandable
only in terms of what men do. The results of cases tend to follow the practice
of men. The practice of lawyers, in dealing with the results of cases, tends
even more strongly to follow the practice of men. Mortgage is a legal concept;
that concept, in all its phases, is important. Mortgage is also a security device.
That fact, in all its phases, is even more important. The legal concept is
empty, without its application. The history, the steady changes of the
concept, are unintelligible except in the light of the strains successively put
130 KARL LLEWELLYN AND THE REALIST MOVEMENT

on the concept by men's needs and men's actions. The present meaning of
the concept, its future course, are not less unintelligible without that light.
Lawyers when writing textbooks seem curiously blind to this. But the
same lawyers, when preparing documents, or trials, or briefs, become
vividly alive to it - within the limits of the particular situation before them.
Under pressure of a client's interest, principles hitherto regarded as firmly
settled take on elasticity or sudden limits. Under pressure of regulating the
multitude of situations never settled in court, the business lawyer is recog-
nizing the practical need of a lawyer's being trained to see his law against
the facts of men's lives, and the practical fact that law not thus seen is not
truly seen at all. Doctrine, then, we must have, first. But doctrine alone is
vacuous, an illusion. Doctrine plus knowledge of the uses to which legal
institutions are being put, is the only doctrine with meaning. Given the two
together, one approaches the question of whether doctrine will expand to
meet a new need, equipped for persuasion - and without false hopes as to
the certainty of the outcome. 1
It is worth noting that Llewellyn, while finding illumination in
the views attributed to Holmes and behaviourist psychologists, does
not commit himself wholeheartedly to their acceptance. Further-
more he is careful to stress that it is the treatment of doctrine in
vacuo, not doctrine itself, which he is criticizing; just as he is careful
to state in another part of the review that, to argue that a lawyer
needs a reasonable knowledge of the economics and sociology of
business as a basis for understanding mortgages, does not involve
commitment to the view that a lawyer is a social scientist. Rather,
Llewellyn asserts, 'He is a craftsman. He is a specialized technician.''
Thus, even as early as 1926, Llewellyn was careful to avoid some of
the extreme views of which realists were later to be accused; he was
also more concerned with prudentia than with science.
The review of Campbell was published during the early stages
of the preparation of the casebook on sales. By the time the book was
complete Llewellyn had further developed his ideas about teaching
tools and in the thirteen-page introduction he set them out at a
great length. Rarely, if ever, has the author of a legal treatise, let
alone the compiler of a casebook, tried to rationalize and articulate
so exhaustively 'the aims and method of the book, and the theoret-
ical base on which it rests'.' It dwarfs even Langdell's famous
preface. A similar self-consciousness is a feature of a number of
casebooks in the 'realist' mould. 5
Llewellyn devoted almost as much thought to the organization of
the book, to the choice of source materials and their manner of
 TWO EARLY WORKS 131
presentation, and even to the elaborate indexes, as he did to its
substantive content. Ironically the enormous labour expended on
the book contributed to its partial failure to achieve its main objec-
tive, that is to say, to be a usable teaching tool. It was nearly 1,100
pages long, with many passages in small print, and much of the
material condensed. It was quite clearly a work of profound scholar-
ship and originality. A book so long, so meaty and so novel appeared
formidable to the ordinary student and almost equally so to teachers
accustomed to a more straightforward and traditional approach.
Llewellyn used the book in his own courses, with conspicuous success
with better students, but most other teachers of sales, even those who
greatly admired it as a work of original scholarship, felt that it was
too hard to inflict on students, and its normal fate was to be used as
a teacher's desk book. It was not a commercial success.
The fact that Llewellyn's Cases and Materials on Sales was not
widely used in teaching did not deter others from using it as a
model. 6 In fact it is generally recognized as a landmark in the history
of the American casebook, being the first of a series of works that
departed from the traditional model of Langdell.7 It would be easy
to give an exaggerated impression of its uniqueness unless it is set
in the context of other activities that were going on at Columbia
Law School at the time. In particular it must be remembered that
between 1930 and 1933 members of the Columbia Faculty published
fourteen course books, most of which involved new departures
in the selection, organization and use of sources. 8 In his Annual
Report of 1933 Dean Smith referred to fourteen other sets of
materials prepared in connection with the revised curriculum, but
not published.9 Thus Llewellyn was not working in isolation and
some of the new ideas in his book were shared with several of his
colleagues, three of whom were singled out in the introduction for
special mention: 'Less obvious, but no less heavy, is the indebted-
ness to long-continued discussions with Underhill Moore, Herman
Oliphant and Walter Wheeler Cook, especially on the side of
analysis in terms of risk-allocation (Moore), of growing distrust of
judicial rationalization (Cook), and of analysis in terms of significant
type fact set-ups: overseas, documentary, etc. (Moore, Oliphant).' 10
Although Llewellyn's is only one of a number of unorthodox
works that were prepared at approximately the same time by a fairly
closely integrated group of colleagues, it is deservedly the best
known. Apart from its considerable scholarly merits, it was the first
132 KARL LLEWELLYN AND THE REALIST MOVEMENT

of the new style of course book to be published, it was in several

respects the most revolutionary, it was based on the most articulate
theory and it was probably the most influential on the subsequent
development of works of this genre. In what respects did it differ
from traditional casebooks on sales? The main differences can be
dealt with under three heads which reflect three of the principal
pre-occupations of Oliphant's Summary discussed above: (i) the
range and use of source materials; (ii) the classification and arrange-
ment of the subject-matter; and underlying these, (iii) educational
objectives.

(i) The range and use of source materials

The typical casebook in the Langdell tradition consisted of little
more than a collection of judgments. Llewellyn's book contains a
substantial amount of text, which is concerned not only with analy-
sis of doctrine and its historical development, but also discusses
economic considerations, business practice and other factors which
affect the expectations and behaviour of commercial buyers, sellers
and middlemen. Such extensive use of 'extra-legal' sources was
revolutionary for a book of this kind, but equally significant is the
manner of presentation of these materials. One of its chief merits,
as Brainerd Currie pointed out, is that it ' .... did not offer social
science materials in homeopathic doses. The author had himself
assimilated and brought to bear the contributions of non-legal
disciplines and had utilized them in preparing background materials
which a lawyer or law student could appreciate without special
conditioning.' 11
Llewellyn's use of cases departed from tradition in several respects.
The majority of 'cases' consisted of a summary of the facts together
with the result, the reasoning of the court being omitted entirely.
Behind this were two ideas, inherited from Corbin and Cook; first the
idea that at least as much significance should be attached to what
judges do (the result based on the facts as the judges saw them) as
to what they say by way of justification.12 Secondly, the idea that
the facts of cases have a significance that transcends their signifi-
cance as precedents and illustrations of doctrine: they are concrete
illustrations of business situations, which give a flavour of practice
beyond the particular legal issues involved; they are also excellent
raw material for students to treat as problems, more closely related
to 'real life' than artificial hypothetical fact-situations dreamed up
 TWO EARLY WORKS 133
by academic lawyers.18 Thus the basis for selection of cases was not
solely that of doctrinal significance.
The extensive use of digests of cases made it possible to include
Bo I cases for discussion, between two and four times the number to
be found in the other leading sales casebooks of the time.14 Forty-five
per cent of the cases had been decided in the ten years prior to
the publication of the book, which was admittedly a particularly
active period in American sales law; 15 the 1919 edition of Williston's
casebook offers a striking contrast: out of a total of nearly 400 cases
there are only twelve from the period 190o-8 and twenty-two from
the period 1909-19; thus cases from the eighteen years preceding
publication represent less than ten per cent of the total. Llewellyn's
emphasis on recent decisions was deliberate: in his view the fact-
situations of recent cases were more likely to be indicative of typical
recurrent problem-areas and typical modern business transactions
than the old cases concerning sales of horses and other face-to-face
transactions. Whereas Langdell and his descendants used cases
primarily as examples of the relatively stable principles, Llewellyn's
emphasis on recent cases reflects a sustained concern with contem-
porary problems.
Emphasis on recent cases did not in this instance involve a sacrifice
of historical depth. Indeed one of the outstanding features of the
book is the analysis of the growth of the law of sales, and notably of
the shrift from caveat emptor to buyer's protection and the conceptual
growth of 'warranty' in terms of the interaction of law and social
and economic change. Some of the flavour of Llewellyn's style is
distilled in the passage which introduces the analysis:
The law of seller's obligation as to quality ('warranty') presents the sweep
of sales law in perhaps its most dramatic form. The picture begins in terms
of a community whose trade is only one step removed from barter - your
black horse, two stools, a jack-knife and thirty-four bushels of com for my
roan, an ox and two dozen eggs. Two vital presuppositions reign: first, that
the goods in question are there to be seen; second, either that everybody
knows everybody's goods, individually, in a face-to-face, closed, stable
group; or that trade with strangers in a shop is an arm's length proposition,
with wits matched against skill. In either event, only a fool believes any-
thing he hears. In either event, the profits of talking a man into buying are
fair and honorable. These are the days when an honest merchant's diary
records: 'Bought I,ooo lbs. of sugar at so much; out of this, sold 1,300 lbs.
at so much. The Lord blessed me with a fair profit.' Manufactured goods
134 KARL LLEWELLYN AND THE REALIST MOVEMENT

are handicraft articles, made by someone you know, and for the most local
of markets.
Out of this we move gradually into a credit and industrial economy.
Ovet'Seas trade in seaports introduces cargo-lot dealing, and dealing in
goods at a distance, before they can be seen. Markets widen with improved
transportation- internal waterways, railroads. This means reliance on
distant sellers. Middlemen's dealings mean, sometimes, the postponement of
inspection; always they mean some ignorance in the seller of the history
of the goods. Industrialization grows out of and produces standardization,
grading and sizing oflumber, grading and branding of flour or hardware, a
certain predictability and reliability of goods. Contracts made by descrip-
tion, or by sample, which is a form of description, or by specification, which
is an elaborate description, become the order of the day. Contracts come
increasingly to precede production. Sellers begin to build for good will, in
wide markets, to feel their standing behind goods to be no hardship, no
outrage, no threat to their solvency from a thousand lurking claims, but the
mark of business respectability and the road to future profit. The law of
seller's obligation must change, to suit.
All of this is an uneven process. Men are trading whiskey for pork in
Illinois long after blankets are handled in bale lots and on credit in New
York City. England is until the 7o's decades ahead of our country in the
development. Our own law grows more rapidly in regard to quality than,
e.g., in the corresponding rules on bills of lading. It grows unevenly by
states .•.• Once seen, the drama of it makes one catch his breath.
And the conceptual growth is as striking as the shift from seller's to buyer's
protection. 'Warranty,' in sales at first as a formulaic collateral contract;
quality at first sharply distinguished from other phases of the deal; condi-
tions and duties fused or confused; 'express' and 'implied' obligation begin-
ning as different legal concepts, with different legal results; struggle and
confusion in the court's dealings with the emergent normality of the execu-
tory contract.u
For all its originality, Cases and Materials on the Law of Sales
marked no break from the library-bound tradition of legal writing.
Llewellyn openly acknowledged this:
The picture is not complete. To fill it out would need a vast body of descrip-
tive and statistical economic material which is as yet lacking. Partly the
lack moves from the prohibitive amount of time required in turning out
what seemed a worthwhile teaching tool. Partly it moves from the fact that
the book is directed to law students, not to students of business; legal tech-
nique thus moves into the foreground, and an understanding of the business
situation becomes not a primary object, but a means to making the legal
job intelligible. Finally, there is the question of space and of technique.
Sooner or later we must learn to bring to bear on our law curriculum an
 TWO EARLY WORKS 135
increased body of fact information; but the art is not easy, and we have to
reckon, while it is being learned, with limitations of time and space. In the
meantime, the descriptions of fact background inserted in the book must
serve as best they can. Over-generalized and over-simplified as they are,
they are nevertheless a first step, and a needed one. 17
Llewellyn, then, perceived the relevance of empirical data to what
he was doing, but in this case he was prepared to make do with what
was readily available. As far as his own efforts were concerned,
teaching and preparation for teaching took priority over funda-
mental research.

(ii) Classification and arrangement

Problems of classification of subject-matter need to be studied
carefully by the proponents of a contextual approach to legal litera-
ture. During the Columbia curriculum discussions a great deal of
attention had been devoted to these problems. Oliphant's Summary
displays an awareness of the problems of devising any scheme of
classification,18 but goes rather further in dispensing with tradi-
tional legal concepts as a basis for classification than Llewellyn was
prepared to go in his subsequent writing. In his longest discussion of
the problem he dissociated himself from dogmatic functionalism:
The first truth, to be repeated for the benefit of 'functionalists,' is that the
old concepts are not only with us still, but within their own areas are still
fundamental.
I say 'within their own areas' because, increasingly, fields open which
escape the older concepts. 'Fair Trade Acts' ..• or the concept of 'unfair
labor practice,' or the impact of taxation on trust and business organiza-
tion, or deposit insurance will serve to suggest what I mean. 18
At the same time the shifting nature of these categories needs to
be recognized :
The second truth is that any of these basic legal concepts (as a going
factor in our law-work) changes not only its meaning, but its shape, and
changes the direction of its 'drive,' as it is put to differing uses, among
differing social and economic contexts.•o
Llewellyn saw no simple solution to the problem of organization
of teaching materials. There was a prospect of recurring strain
between established legal categories and constantly changing social
patterns and often a compromise had to be made between the claims
of principles competing to be the basis of classification. The organ-
136 KARL LLEWELLYN AND THE REALIST MOVEMENT

ization of Cases and Materials on the Law of Sales reflects such a

compromise. Most, but not all, of the chapters are based on legal
concepts.21 The chapter headings represent a significant, but not a
revolutionary, divergence from, for instance, their counterparts in
Williston's casebook. So do the sub-headings. In diverging from the
relatively neat traditional organization, Llewellyn was not able to
substitute any simple alternative principle. The result is that the
book is open to criticism on grounds of untidiness, a charge which
the realist often has to bear in silence.
There were other departures from tradition. Most important was
the shift of emphasis from the present sale to the contract for future
delivery on the ground that the latter is far more important to the
lawyer in practice and more typical of business transactions in a
credit economy. This insight has been acted on by editors of later
casebooks. Instead of starting with an historical introduction or
examination of the contract of sale, distinguishing it from other
contracts, Llewellyn plunged straight into the economics of business.
The opening words of the first chapter set the tone : 'Price is the
heart of the sales contract; and peculiarly so in sales to a dealer.
Ours is a money economy, a price system; business centers on profit;
profit centers on price.' 22
In matters of detail the organization of the material is influenced
by what the editor conceived to be recurring types of situation and
typical problems presented to businessmen or to lawyers practising
preventive law in commercial situations. Two of the most important
chapters are organized around legal concepts- 'warranty' and 'title'
-but the treatment is functional. The chapter on warranty has as a
central theme the changing meaning and use of the concept at
different times and in different contexts; the main point of the
chapter on title is to demonstrate that this concept has in fact very
little functional significance in respect of allocation of risk, despite
the central position given to it in traditional analyses of the law of
sales. 28
Two other features of the book are connected with Llewellyn's
ideas about classification. First, there is a recurring theme of the need
to be distrustful of broad generalizations and especially of 'lump
concepts'. This theme reaches a crescendo in the analysis of 'title'.
By 'lump concepts' Llewellyn meant abstract legal conceptions, such
as 'right', 'possession', 'consideration', 'title to goods', and 'servant'.
One of the 'common points of departure' of realists, he claimed was
 TWO EARLY WORKS 137
'the belief in the worthwhileness of grouping cases and legal situa-
tions into narrower categories than has been the practice in the
past.' 24 A general concept which 'lumped together' socially dispar-
ate situations (e.g. 'servant' in relation to vicarious liability in torts)
or which was used in different contexts to perform different func-
tions (e.g. 'servant' for determining for whose actions a 'master' is
liable in torts, or for determining to whom a master owes a duty to
provide a safe system of working or in relation to actions for entice-
ment or non-tortious matters relating to insurance) was to be viewed
with scepticism. He later added an important proviso: 'The quest
for narrower, more significant categories is always a sound first
approach to wide categories which are not giving satisfaction in use.
But of course, once satisfactory narrow categories have been found
and tested, the eternal quest recurs for wider synthesis-but one
which will really stand up in use.' 23 In respect of 'narrow issue
thinking', as he called it, Llewellyn was directly influenced by his
former teacher, Hohfeld. The chapter on title is a good example of
the application, and development, of Hohfeld's ideas. The weapons
of analytical jurisprudence are here used as part of the armoury of
legal realism.
Llewellyn was rather proud of another feature, the indexes. The
'topical' index was fairly conventional in form, but was exception-
ally detailed. There was an index of cases by jurisdiction in addition
to the usual table of cases. Most original was the index of commod-
ities, which enables the reader to work through all the cases in the
book dealing with agricultural raws and foodstuffs, or more narrowly
with sugar or potatoes. These indexes are indicative of the great
care that went into every aspect of the preparation of the book.

(iii) Educational objectives: Llewellyn and Langdell

Between the publication of Langdell's casebook in 1871 and the
appearance of Llewellyn's in 1930, there had, of course, been ex-
periments and modifications in respect of teaching materials. Not
all of the unusual features of the sales book were entirely unprece-
dented. But by and large up to 1930 casebooks had followed a fairly
standard pattern. Never before had this pattern been challenged in
so many different respects in a single volume. Llewellyn's work
marks a major step forward in the development of teaching tools
in American law schools, and in significance it is of the same order as
Langdell's work before it or the 'Yale casebooks' of the tg6os. 21
138 KARL LLEWELLYN AND THE REALIST MOVEMENT

At the root of the differences between Llewellyn's casebook and

Langdell's is a difference in objectives. The materials were to be used
for different purposes. It is true that both editors preached a
vocational approach to legal education, but their respective images
of the end product, the lawyer, were radically different. Langdell's
image was tailored to fit his somewhat Germanic ideas of university
education and was rather blurred:
Law, considered as a science, consists of principles or doctrines. To have
such a mastery of these as to be able to apply them with constant facility and
certainty to the ever-tangled skein of human affairs, is what constitutes a
true lawyer; and hence to acquire that mastery should be the business of
every earnest student oflaw.n
Langdell's articulation of the objectives of the case method did
not do full justice to what he was doing. In claiming merely that he
was trying to instil a mastery of doctrine, he did not make clear the
value of the case method as a means of developing powers of reason-
ing and analysis. His disciple Keener made the point:
••. the student is practically doing as a student what he will be doing as a
lawyer. By this method the student's reasoning powers are constantly
developed, and while he is gaining the power oflegal analysis and synthesis,
he is also gaining the other object of legal education, namely, knowledge of
what the law actually is. 88
In Langdell's image of the 'true lawyer' in this context no distinc-
tion is made between the main functions of lawyers as they are
commonly expressed in the four crude personifications of 'the coun-
sellor', 'the advocate', 'the judge', and 'the legislator'-the latter,
even in American society, not being a role monopolized by lawyers.
On the other hand, it is illuminating to see Llewellyn's casebook,
in terms of the differences between these four standpoints. 29
Llewellyn's purpose is dominated by a view of his students as
potential private practitioners.80 Although he was aware of the
different standpoints of the judge and the legislator, they are not in
the centre of his focus. Indeed, his work at this stage reflects his
experience of practice as an office lawyer for the National City
Bank, only exceptionally concerned with litigious business, but very
well placed to look at problems from the point of view of typical
clients, who had in his case been large business concerns. In a foot-
note appended as an afterthought he acknowledged that he had
taken too narrow a perspective when criticizing doctrine: 'The book
 TWO EARLY WORKS 139
errs, I think, in too happily assuming the needs of buyers and sellers
to be the needs of the community, and in rarely reaching beyond
business practice in evaluation of the legal rules.' 81 In time he
developed a broader base for judgment.
Not only was Llewellyn's operative image of the 'lawyer' rather
different from Langdell's, he also had a more comprehensive picture
of what intending practitioners needed by way of legal education.
His skills' analysis of lawyers' operations was not developed until
later,32 but already he saw legal education as having additional
objectives to the mastery of legal principles and the development of
facility in analysing doctrine. The Langdell tradition, in his view,
was inadequate in two main respects: firstly, it did not take sufficient
account of the wide variety of skills that lawyers were expected to
exercise, some of which were teachable and were suitable for teaching
in a university; secondly, 'the resulting technical skills, though sharp
and well instilled, were narrow, and they remained so. The where-
withal for vision was not given.' 33 Langdell's image of the lawyer
was that of a narrow technician, Llewellyn's was of someone belong-
ing to a profession that for its effective exercise required qualities of
'vision, range, depth, balance and rich humanity'. 84 His refusal to
distinguish between the 'liberal' and 'vocational' study of law, the
theme of a major address thirty years later,83 is implicit in his
justification for devoting so much space in the casebook to the
history of warranty. The passage follows on directly from the one
already quoted:
Because the struggles are not wholly over, because the confusion partly still
persists, the study of this history has peculiar present value. It has immediate
practical importance. But it has more. It has a deeper practical importance;
a cultural value no professional man can safely do without. It is a study of
how and why rules in the courts change, and concepts alter, and policies
emerge. That process is the very bones and blood oflaw. The understanding
of it is vital to a lawyer's dealings with the living law of his own case in
court; it is no less vital to his placing of his work and his profession in the
society both claim to serve. 81

Conclusion
No apology is offered for this detailed analysis of a casebook. Its
historical significance as a teaching tool has already been noted;
several of the outstanding features of the sales article of the Uniform
Commercial Code are anticipated in the book. For the jurist the
140 KARL LLEWELLYN AND THE REALIST MOVEMENT

important point is that the book is a concrete embodiment of realist

jurisprudence, free for the most part from the exaggerations and
loose generalizations that have blinded so many critics. Llewellyn's
nine starting-points of realism87 are all illustrated in a manner that
is less likely to provoke needless controversy than their statement
in the polemical context of the debate with Pound. 38 Nor could any-
one studying the text with care come away with the impression that
the author believed 'that talk of rules is a myth' 39 or that his cosmos
was entirely judge-centred or that he had a shallow cynicism about
the regularity or the rationality of official behaviour or that he
thought of law as a 'series of erratic accidents' or that he identified
natural science with legal science or that he was a positivist totally
indifferent to questions of value or any of the other half-truths or
naive distortions that have sometimes been attributed indiscrimin-
ately to realism.
Here a note of caution is necessary. The casebook is an early
work, useful for understanding Llewellyn's thought but not a comp-
lete guide to his jurisprudence. Some of his ideas are there only in
embryo; for some time yet his concrete work was to be ahead of his
theoretical formulations. Fruitful use of his basic ideas anticipated
their mature articulation. In particular there are a few statements,
oversimplified or exaggerated, that are vulnerable to even quite
elementary criticism. However, such criticism, it is suggested, is
peripheral to the main concerns of the book. For the most part Cases
and Materials on The Law of Sales is today largely of historical
interest, marking a step forward in Llewellyn's development as a
scholar and in the evolution of new forms of legal literature for
students. However, the specialist in commercial law who is prepared
to wrestle patiently with the detail will almost certainly find that this
is a work which still repays careful study.

THE BRAMBLE BUSH 40

The Bramble Bush is almost certainly the most widely read of
Llewellyn's books. The 1951 edition has been something of a best-
seller, judged by the standards of law publishing. The reasons for its
popularity are obvious: it is short; it is written in a simple, direct,
racy style; and it is a convenient Aunt Sally in the game of polemical
jurisprudence, in which a jurist's least balanced statements are
accorded the most attention. This is aptly symbolized, in this
 TWO EARLY WORKS 141
instance, by the fact that for some time it has been the only one of
Llewellyn's works to have been used as a set text in the postgraduate
Bachelor of Civil Law degree at Oxford.
The Bramble Bush was the outcome of an attempt to deal with a
familiar problem. Every year in almost every law school one or more
people are faced with the task of introducing first year students to
the study of law. Typically the law student knows little about law
and less about legal education; often he has misconceptions about
both. Typically also law teachers have divergent opinions about the
best way of effecting an introduction. There are enthusiasts and
there are sceptics; there are preachers and Pyrrhonists; there are
those who would induct the beginner slowly, by easy stages, and
there are 'deep-enders', who would deliberately plunge him in out
of his depth on the first day. Some would emphasize basic vocabu-
lary, or elementary information, some broad perspectives, others
basic techniques. Some believe that the student should be given a
bird's eye view of the subject as a whole; others would cover the
whole universe of knowledge, except, perhaps, law itself; yet others
would embark immediately on the detailed study of particular fields.
Some would spread the introduction over a whole year; some would
dispose of it in a single hour. It is a matter which is likely to continue
to offer law teachers perennial opportunities for disagreement.
In 1929 Llewellyn took on this task at Columbia. He showed him-
self to be an enthusiast, a committed deep-ender, and a fairly sophis-
ticated evangelist. He took the assignment very seriously and went
to unusual pains in preparing the series of eight scripted lectures
which he delivered in 1929 and repeated in the following year. The
medium suited him well: it enabled him to express in a relatively
uninhibited manner some of his most deeply felt attitudes to his
subject and his profession; there was also scope for some lively
histrionics. The lectures were a resounding success, so much so that
in 1930 he was persuaded to have them published as an introductory
text. In the printed version, in addition to the eight lectures to first
year students, he included one addressed to the same class at the
start of their second year and a final one to the graduating class. The
whole was given the title of The Bramble Bush: On Our Law and
Its Study. The first edition was privately printed, but was quite
widely circulated, so that it was soon well known, and, in some
quarters, notorious. 41 A second edition was published by Oceana in
1951.
142 KARL LLEWELLYN AND THE REALIST MOVEMENT

The title of the published version of the lectures is taken from a

nursery rhyme:
There was a man in our town
and he was wondrous wise
he jumped into a BRAMBLE BUSH
and scratched out both his eyes -
and when he saw that he was blind,
with all his might and main
he jumped into another one
and scratched them in again.' I

This symbolizes 'the total immersion theory' of legal studies.

Llewellyn, like most of his colleagues, was a deep-ender: 'No cure
for law, but more law. No vision save at the cost of plunging
deeper.' 43 At first the student will feel confused, lost, blind. The
remedy is the traditional American prescription: 'Rather must you
immerse yourself for all your hours in the law. Eat law, talk law,
think law, drink law, babble of law and judgments in your sleep.
Pickle yourself in law- it is your only hope.'u For Coke's balanced
diet of six hours a day spent in 'law's grave study' is substituted a
fifty-hour week supplemented by other relevant activities outside
working hours. 45 The symbol of the bramble bush refers to one of
the principal messages of the lectures: law is very demanding; only
if you give yourself to it wholeheartedly can you hope to succeed in
law school and in legal practice; if you do give yourself in this way,
then a legal career can be a means to fulfilment, or, as Holmes put
it, 'a man may live greatly in the law'.'" Thus total immersion is not
merely the most effective way of inducting the beginner into the
rigours of the American law school; it is also what will be demanded
by most kinds of legal practice. To meet these demands-and to
make them bearable, one must integrate one's approach to law and
one's approach to life. Work in law must be seen as being an essen-
tially humane activity, which will enrich one's personal life and
which can itself benefit from outside reading and experience. The
message is only fully articulated in the peroration of the eighth
lecture:
Go then and read- in the law and out. By all means read. Work- at your
art, your science, your philosophy - work even at your Mencken, if you
must, or Heywood Broun. But bring the work home again, and merge it
with your law. Read, too, from your own law out. This, in your law- in
 TWO EARLY WORKS 143
school and practice- is the one part of wisdom: trade, culture and profes-
sion all in one••••
Go, then, and read. Go then, and look, and see. I cannot say that that way
fortune lies. I cannot tempt you with worlds to conquer, nor yet with worlds
to save. Must you have the moon? I find this plain match enough, that flares
for its tiny moment. Surely a nothing- tossed, it may be, for sport into the
gutter. Yet a pitiful, brave flame. Some warmth, some light, some touch of
burning courage. What have you more to ask - or to ask to be? 47
Such rhetoric is not characteristic of The Bramble Bush as a whole.
It is only towards the end that the underlying romanticism becomes
apparent. The style of the first part is deliberately laconic. Indeed,
parts of the first chapter, taken out of context, have sometimes been
used to suggest that the author was an extreme radical or a cynical
iconoclast. 48 Nothing could be further from the truth. The book is
fundamentally idealistic and conservative. To understand this it is
necessary to treat it as a whole and to see it in context; in particular,
it is important to grasp its underlying assumptions about legal
education and about the nature of the primary audience.
At the time Llewellyn was one of the most outspoken critics of
American legal education. In a particularly virulent critique in 1935
he castigated law school practices as being 'blind, inept, factory-
ridden, wasteful, defective and empty'.4 9 In The Bramble Bush, too,
he complained openly of 'the stupendous inadequacy, the lack of
direction, the inefficiency in legal education'. 50 Taken by itself this
extravagant language could be quite misleading, for it has to be set
against his conclusion that legal education in the United States was
probably better than most other types of education. 51 More import-
ant, The Bramble Bush accepts completely some of the basic tenets
of the prevailing law school ethos: the principal function of the
LL.B. is preparation for private practice; lawyers and law students
are a class apart, members of a closed elite; undergraduate law
students are initiates of the mysteries of the guild; they are expected
to be professional, competitive, 'proud of their calling', conformist
and, above all, hardworking. Individual opinions and initiatives are
tolerated, even encouraged, within the limits of the professional
ethic which does, after all, accept certain liberal and humane values.
The world of the American law school from the time of Langdell's
Harvard, for all its liveliness and willingness to experiment, was
based on an underlying conformism, which was not seriously
challenged until the upheavals of the late xg6os. The Bramble Bush,
144 KARL LLEWELLYN AND THE REALIST MOVEMENT

despite its unconventional style, contains one of the most forceful and
articulate statements of the law school ethos. This may be one reason
for its popularity among American law teachers.
The main purpose of the first eight lectures is evangelical, to
promote certain attitudes to law and its study. Llewellyn was too
sophisticated to think that this could be achieved merely by deliver-
ing a sermon:
We have no great illusions, my brethren and I, as to how much good it will
do you to be told these things in advance. We have learned by bitter experi-
ence that you will not take the things we tell you very seriously. You
conceive this, I take it, to be somewhat in the nature of the pep meeting to
which you were exposed when you first entered college. You expect me to
tell you that you should be earnest about your work, and get your back
into it for dear old Siwash, and that he who lets work slide will stumble by
the way. You sit back with a cynical detachment, prepared in advance to
let this anticipatory jawing slide comfortably off your neck and rump. Let
him have his say. That is what he gets his pay for. But we, the sophisticated
youth of this new century, we know that he means little of what he says,
and what he does mean, as far as he is concerned, means nothing to us. The
ungovernable hand of fate has put him in the chair; no help for that. The
workings of society require us to let his mouthings fan our ears. Another of
the conditions to admission to the bar. n
The structure and emphasis of The Bramble Bush is conditioned by
Llewellyn's conception of his audience. As is apparent from the
above passage, he assumes that they are all intending private practi-
tioners of law. 53 This permits a single consistent standpoint and
precludes any of the ambivalence about objectives that plagues
English university law teachers. 54 They are beginners who need an
introduction which is simple without being shallow. They need to
be given not only a foothold, but also a sense of direction. Above all,
they need to have communicated to them what it is that fascinates
and engages those who love the law. Llewellyn also saw his audience
as belonging to a disenchanted postwar generation, cynical about
corruption in government and the pretensions of the captains of
industry, lacking heroes: 'I meet in you also a homeless, forlorn
idealism that is ill at ease among the disillusioned thoughts it lives
among.' 55
Why have they chosen law? Llewellyn picks on one possible
motive that has been of concern to psychological researchers in the
rg6os. 56 A very high percentage of American law students seem
 TWO EARLY WORKS 145
to come to law school seeking something fixed, authoritative, certain,
a rock in a sea of exploded ideals:
You come then to us. Whatever has gone, the law is left to you. Left to you
as the fixed sure order of society. Left to you as that which controls the
judges, which clothes the judge with a certain majesty even while and in-
deed because it does control him, which lifts him and his work to a level he
could not attain alone. n
Llewellyn anticipates that his audience expect to devote their
energies in law school mainly to learning established rules of law. 58
This comfortable belief, commonly held by laymen, is in the
students' case fortified by their strong emotional vested interest in
clinging on to it. At the same time this belief runs counter to the
whole approach of the Columbia Law School of the time. Thus there
is at the start a dangerous conflict between what the students expect
and want and what the teachers are offering:
And we? These fabrics we seize and tear as idle cobweb. These mirrors of old
dear-held truth we shatter. The law dissolves itself before our acids. Right
and justice come to figure as pretty names for very human acts done on
often the less human of motivations. I have said before that this tendency
of our teaching has caused me worry, in its aspect as developing the techni-
cian at the cost of the whole man. It gives me double pause in this connection
- in its effect on young men already disillusioned beyond the portion of
young men. n
This then is the central problem of The Bramble Bush as Llewellyn
conceives it: to destroy a misapprehension about legal education,
whilst persuading his audience that what is being attempted at
Columbia is worthwhile. For the lost illusion a new faith must be
substituted; after iconoclasm, a new idealism. The Bramble Bush is
thus first and foremost a work of proselytization directed to a poten-
tially sceptical and adverse audience. From this point of view the
first eight chapters can be seen as a sustained and cleverly disguised
piece of advocacy by an advocate who has studied his court with
some care. The latent idealism is not bared until the audience's
interest and enthusiasm have been aroused. Irony, self-deprecation,
hard-headed analysis, down-to-earth advice on how to do it, all
precede the full-blooded rhetoric of the eighth chapter.
Although the 'bramble bush' theme gives a basic unity to the first
eight lectures, the early chapters deal with a variety of topics. The
book is divided into two parts, 'the bramble bush' and 'the other one'
146 KARL LLEWELLYN AND THE REALIST MOVEMENT

(i.e. the second bush). The first part deals with the immediate needs
of the beginner, the second concentrates on wide issues. In both
parts general theory, practical advice and elementary introductory
material are all intermingled. The first chapter, 'What Law is
About', is largely directed to making the point that there is much
more to the study of law than learning rules: it is argued that the
main function of law is to settle and prevent disputes and disputes
are a prime concern of practising lawyers, whether acting as
advocates or counsellors; knowledge of rules is important, but is not
enough for effective advocacy, still less for counselling. 'If rules were
results there would be little need of lawyers'. 60 This, it might be
thought, is both elementary and incontrovertible. Unfortunately
Llewellyn dressed up the argument in general jurisprudential
terms that have occasioned controversy, although it was not neces-
sary for him to do so. This aspect will be considered in detail below.
After this relatively brief general introduction. Llewellyn turns
directly to the immediate problems of the beginner. Law is studied
by 'the case method'; what needs to be known about cases for maxi-
mum benefit to be derived from the method? The next three
chapters set out to answer this question. They are the most detailed
in the book, although they are for the most part elementary.61
Llewellyn often criticized American law schools for overemphasiz-
ing the case method at the expense of other devices. Yet in The
Bramble Bush he devoted almost a quarter of the space to problems
of case study, as against, for instance, less than four pages to inter-
pretation of statutes. In this he was not being inconsistent, as his
advice was directed to ways of obtaining maximum benefit from
Columbia Law School as it was, rather than from some ideal law
school of his imagination. The case system dominated, so it required
detailed attention.
Chapter 5, 'Ships and Shoes and Sealing Wax', deals, inter alia,
with the place of logic in law, the relationship between rules and
official behaviour, statutory interpretation, the Hohfeldian analysis
of 'rights', and the bias of law school teaching towards appellate
courts. Each of these topics is treated in less cursory fashion in works
other than The Bramble Bush. 62
The next three chapters form a unit. Starting in diminuendo
with the short-range objectives of legal education, moving to a
broader perspective in a brief treatment of Law and Civilization,
they culminate in the crescendo of the eighth chapter. The final two
 TWO EARLY WORKS 147
chapters are afterthoughts, for the most part elaborating on what
has gone before. Chapter g, addressed to the same class at the start
of their second year, consists largely of advice on how to compen-
sate for the inadequacies of their legal education; the final chapter
takes as its main theme the unpopularity of the legal profession and
the ethical dilemmas of lawyers, anticipating his extensive writings
on the subject in later years and re-emphasizing the need for
idealism.
The key to the success of the original lectures lies in the fact that
they managed simultaneously to engage the interest and emotions of
the beginner whilst exposing him in a relatively simple way to some
basic insights into the common law and the world of the law school.
It has been suggested that much of The Bramble Bush is too difficult
for the beginner and that more profit would be derived from it by
second or third year students. Llewellyn himself admitted in the
foreword to the second edition that he had learned that 'their bite
for a beginning law student lies rather in November than in
September'.68 But those who believe that a healthy attitude to the
study of law is best achieved by 'catching them young' and who
believe that The Bramble Bush attitude is healthy, would probably
agree that the potential gains from putting the book into a student's
hands at the outset of his studies outweigh any partial loss of under-
standing, a loss which can in any case be made good by re-reading
at a later stage. For the most part, then, one may conclude that The
Bramble Bush was outstandingly successful in fulfilling its main
objective.
The book, however, has also been treated as a serious contribu-
tion to general jurisprudence. Indeed, it gave Llewellyn an
unwelcome notoriety, which hurt and embarrassed him. Parts of
The Bramble Bush, taken with his articles on realism, stirred a
'tea-pot tempest', as he called it. 64 The scars are apparent in much
of his subsequent work.
Most of the jurisprudential ideas put forward in The Bramble
Bush are developed at greater length and in a more satisfactory
fashion in other writings which were not so obviously directed to a
particular audience. It is arguable that only in respect of the
chapters on case law is Llewellyn's most important discussion of a
topic to be found in The Bramble Bush -and it is not these chapters
that have been the source of the trouble. Readers of the book need to
remember that it represents a relatively young Llewellyn addressing
t4f3 KARL LLEWELLYN AND THE REALIST MOVEMENT

first year students rather than the older Llewellyn addressing ex-
perienced lawyers or fellow jurists. This is not to say that the first
chapter is as vulnerable as some critics have suggested. For present
purposes it will be adequate to show that two passages, read in
context, do not bear the interpretation that they have been given
and in any case are not representative of Llewellyn's mature views.
Beyond this no attempt will be made to rake over the ashes of a
controversy that is best forgotten.
Both offending passages occur in the early part of the first lecture:
This doing of something about disputes, this doing of it reasonably, is the
business oflaw. And the people who have the doing in charge, whether they
be judges or sheriffs or clerks or jailers or lawyers, are officials of the law.
What these qfficials do about disputes is, to my mind, the law itself. 8 5
And rules, through all of this, are important so far as they help you see or
predict what judges will do or so far as they help you get judges to do some-
thing. That is their importance. That is all their importance, except as pretty play-
things. But you will discover that you can no more afford to overlook them
than you can afford to stop with having learned their words. 81

These passages, and especially the two sentences in italics, are prob-
ably the most quoted statements of Llewellyn. In the foreword to
the second edition, under the heading 'correcting an error', he
admitted that he had used 'unhappy words' which were 'plainly at
best a very partial statement of the whole truth'. The most depress-
ing aspect of the behaviour of his critics is that on a number of
occasions one or other of those passages has been cited since 1951,
without any reference to the retraction and explanation in the
second edition. It is difficult to understand how, quite apart from
the context and from Llewellyn's other works, it is possible to
continue to refer to the first passage as 'Llewellyn's definition of
law' or the second passage as evidence for the view that Llewellyn
(sometimes, by anonymous attribution, the realists) believed that
'talk of rules is a myth'.
Traditionally in jurisprudence a writer's definition of 'law', if he
has one, is accorded close attention. In so far as such definitions
can usefully be treated as the organizing concept of a whole theory,
or as indicative of the boundaries of the theorist's focus of attention,
it is a reasonable practice. In Llewellyn's case this practice proved
to be most unfortunate. He normally explicitly refused to put for-
ward a comprehensive definition of 'law',87 but the words, 'What
 TWO EARLY WORKS 149
these officials do about disputes is, to my mind, the law itself' have
regularly been cited as Llewellyn's definition of law; it is not un-
known for his contribution to jurisprudence to have been evaluated
solely in terms of these thirteen words.
Treated as the starting-point for a whole legal philosophy the
statement was absurdly easy to criticize. One cannot but suspect
that this is one of the reasons for its continued citation. Since
Llewellyn retracted the statement and since it is not a particularly
helpful clue to an understanding of his ideas, it is unnecessary to
consider in detail the criticisms to which it has been subjected. How-
ever, it is worth looking briefly at two of the most common objections
to the 'definition', for they do throw light on the scope of his
theoretical interests at this stage of his thinking. First, it can be
correctly pointed out that the concept 'official' presupposes a legal
system from which 'officials' derive their authority and which
provides criteria for identifying who is and who is not an official.88
The same point can be made about 'judges', 'courts', and so on.
Since such concepts presuppose the ideas of 'law', and 'legal
system', 'law' cannot adequately be defined in terms of them. This is
a valid point, but it could be an important one in relation to
Llewellyn's thinking only if he had been led into serious error by a
failure to realize this-if, for instance, this was indicative of the
confusion of the concepts of 'authority' and 'power'. An examina-
tion of Llewellyn's writings of the period reveals that he made
no such error. While it is true that, in some contexts, some such
concept as authority or rule of recognition is merely presupposed,
and some people might find his most detailed discussion of 'power'
and 'authority' somewhat obscure, he quite clearly did distinguish
between them. 69
A second criticism made of the definition is that whereas the state-
ment to some extent fits the perspective of a potential litigant or his
lawyer, it is not so suitable from the standpoint of a law reformer
or legislator and is totally inadequate from the standpoint of a
judge. 70 Llewellyn acknowledged this latter point in his foreword to
the second edition of The Bramble Bush:
They are, however, unhappy words when not more fully developed and
they are plainly at best a very partial statement of the truth. For it is clear
that one office of law is to control officials in some part and to guide them
even in places where no thoroughgoing control is possible, or is desired. 11
150 KARL LLEWELLYN AND THE REALIST MOVEMENT

However, Llewellyn's 'error' is not so heinous in the context of

the original statement. The object of the passage in question was to
make forcefully and vividly to intending private practitioners of law
the elementary point that rules are not everything in law, especially
for practising lawyers, and that their focus of attention needed to
be wider than that. The standpoint clearly was that of the private
practitioner. This is hardly the context in which one would expect
a general definition of 'law', intended as the starting-point for a
comprehensive legal philosophy.
The claim that Llewellyn did not intend the sentence as a general
definition of 'law' is also supported by the introductory passage
to his first article on 'realism' which was also published in 1930.
Here he specifically refused to define 'law' and he set out his reasons
for so refusing.
The difficulty in framing any concept of 'law' is that there are so many
things to be included, and the things to be included are so unbelievably
different from each other. Perhaps it is possible to get them all under one
verbal roof. But I do not see what you have accomplished if you do. For a
concept, as I understand it, is built for a purpose. It is a thinking tool. It is
to make your data more manageable in doing something, in getting some-
where with them. And I have not yet met the job, or heard of it, to which all
the data that associate themselves with this loosest of suggestive symbols,
'law', are relevant at once. We do and have too many disparate things and
thinkings to which we like to attach that name. 7 2
The passage reveals a much more sophisticated understanding of
the nature and functions of definitions than the critics of the famous
sentence have allowed for. It also implies that at this" stage Llewellyn
was not attempting to expound a comprehensive theory of law.
He was concerned with certain theoretical questions with wide
implications, but not as yet with what he later referred to as 'a work-
ing whole view'. When he did start to develop this, his basic organ-
izing concept was 'the institution of law-and-government', rather
than 'law' simpliciter. 78
The passage relating to rules as 'pretty playthings', if read in
context, ought not to occasion difficulty. Limited to the stand-
points of the advocate and the counsellor, it contains an important
truth, perhaps a little overstated, about the uses of rules for such
functionaries. It was clearly not intended, and it is ridiculous to treat
it, as a rounded statement of Llewellyn's views on the place of rules
in law. For this one should turn to his paper 'My Philosophy of Law'
 TWO EARLY WORKS 151
and, more important, to his unpublished book on The Theory of
Rules. 74
After the publication of The Bramble Bush in 1930, Llewellyn
could hardly deliver the same lectures again to incoming classes at
Columbia. However, he continued to be interested in the problem
of inducting first year law students. 73 For over ten years he planned
to produce The New Bramble Bush. In the late 1940s he got as far
as writing first drafts of several new chapters, but in 1951 he gave
up, concluding that '[T]he young fellow who wrote these lectures just
isn't here any more'. 78 Instead he decided to restrict revision for
the second edition to a minimum, a foreword, an afterword and a few
minor textual amendments. The decision was probably wise; the
original Bramble Bush lectures would have been buried in extensive
theorizing about the nature of law and a very extended discussion of
the legal profession. The draft chapters of the New Bramble Bush
did not match the freshness and vitality of the original and its
admirable compactness would have been sacrificed. 77
When Llewellyn moved to Chicago he gave an introductory course
to first year classes entitled 'Elements of Law'. 78 This was a
required course, very much more substantial than The Bramble
Bush lectures. It was something of a mixture, combining fairly ex-
tensive reading of Llewellyn's works (including The Bramble Bush
and The Cheyenne Way) and intensive study of a series of cases
concerning indefiniteness in contracts, products liability and foreign
remittances. Although there were a number of Llewellynesque
features, in many respects it resembled other 'legal method' courses,
and it lacked the unique qualities of The Bramble Bush.
A single lecture from the course was published in 1953, under the
title 'The Adventures of Rollo'. Both in emphasis and in the
assumptions about the audience, there is a striking change from
The Bramble Bush, as is evident from the opening paragraph:
And so little Rollo came to the University of Chicago Law School. His heart
was high, and his eyes were filled with shining stan, because little Rollo
knew that the world was waiting on his coming. A world to be shaped by
little Rollo! Because, after all, little Rollo had read .the great books; and he
thought large thoughts. Easily and lightly he could balance a large thought
and bounce it the way a trick sea lion bounces a ball upon his nose. And
little Rollo had not yet waked up to the fact that there is no more inhumane
thing among the humanities than a great idea unaccompanied by the
experience on which it rests, devoid of the human meaning test by test, man
152 KARL LLEWELLYN AND THE REALIST MOVEMENT

by man, experience by experience, that made the great idea great. So that
the formula of formulas is a bubble for a sea lion to play with, and the job,
for anybody, of understanding becomes a job of getting down to the cases,
of getting down to the people, and getting down to the happenings and
events, the loves and the hates, the greeds and the fears, that went into mak-
ing the great idea a great idea, and gave it bite.
Most of all, of course, is that true of the lawyer. A theologian perhaps may
be able to take a great idea, work with it as such, as a shining goal; and a
philosopher may be able to get towered away from all the world around him
enough to contemplate his navel and a great idea simultaneously; and a
poet can dream great beauty and put it into words that will convey some-
thing of the dream.
But none of these is the lawyer's function as a lawyer. 1 '
The theme of the lecture is that 'the lawyer is . • . the man of
measures', the man who par excellence must master techniques of
turning ideas into action. The principal theme is expressed in
Llewellyn's favourite aphorism: 'Technique without ideals is a
menace..•. Ideals without technique are a mess.' 80 The change is
more in style than in substance and if a new edition of The Bramble
Bush were to be published, 'The Adventures of Rollo' might well
be added to the original text.
To sum up: of all his published works The Bramble Bush conveys
most clearly the flavour of its author's lecturing style-in other words
one facet of Llewellyn as a teacher. It also contains one of the most
eloquent statements of his personal credo about the rewards of
legal work. It can be read as an introduction to his juristic ideas, but
because it is addressed specifically to first year law students it should
not be taken as representative of his work as a scholar nor as a jurist
in 1930, still less of the more mature later work. To do so would be
almost akin to judging the achievement of T. S. Eliot on the basis of
Old Possum's Book of Practical Cats. Thus in approaching
Llewellyn's first two legal books the modern reader will be well
advised to pay as much attention to the nature of the medium as
to the content of the message.
8
The Cheyenne Way

Most lawyers are more likely to associate the Cheyennes with high
adventure than with juristic insight, and when informed that The
Cheyenne Way deals with the dispute settlement processes of an
American Indian tribe, they might well conclude that it is no
concern of theirs. This would be unfortunate for the substance of
the book is less exotic than its title suggests, although its setting and
its form are certainly unusual. Indeed, it is a rare example of a book
which is at once entertaining and profound and, for this reason,
for many people it may be the most suitable introduction to the
more general aspects of Llewellyn's thought.
Llewellyn's early acquaintance with the work of Sumner and
Keller and his later reading of Max Weber stirred his interest in
'primitive law'. When he read Malinowski's path-breaking work,
Crime and Custom in Savage Society 1 he found it stimulating, but
he was irritated by the vagueness and high level of generality of
much of the description. Certainly Malinowski's studies of the
Trobriand Islanders represented an important advance. He was one
of the first anthropologists who actually lived in the community he
was studying; he saw more clearly than his predecessors how far
the verbalized ideal norms of behaviour-how a people would state
their 'customs'-could deviate from their actual behaviour, and by
focusing on practices more than on norms he brought a breath of
realism into anthropology. Moreover, he successfully challenged a
then fashionable view by showing that the Trobrianders had mech-
anisms for the enforcement of reciprocal obligations that were
comparable to the mechanisms found in advanced legal systems and
that these were worthy to be called 'law'. But, complained Llewellyn,
'the author shows no sign of there being any adjudicating machinery,
no sign even of open 'law' enforcement ... by the political chief,
no sign of procedure save that which is the mobilization of opinion
154 KARL LLEWELLYN AND THE REALIST MOVEMENT

against the known guilty by open accusation-with the ceremonial

suicide of the guilty as a counter-attack where the inevitable
penalty is felt by the guilty to be excessive. It is regrettable that we
have from Malinowski no clear and detailed statement as to whether
and how far the political chief exercises legal functions.' 2 When he
analysed his dissatisfaction further, Llewellyn came to the conclu-
sion that Malinowski's most important omission was that he gave
few details of what actually happened when disputes arose. Practice
was described in very general terms, but in Crime and Custom only
six actual cases were used. 3 From Malinowski's account it was diffi-
cult to tell what kinds of disputes were most common, who was in-
volved in the process of settlement, or how settlement was achieved.
Llewellyn had barely started to develop this line of thinking when
it was suggested to him, probably by Franz Boas, that he should get
in touch with a promising graduate student in the Department of
Anthropology at Columbia, E. Adamson Hoebel, who was interested
in 'primitive law'! Hoebel was faced with a problem. He wished to
embark on a study of the legal life of the Comanche Indians, but
more experienced anthropologists had expressed scepticism about
the viability of the project, mainly on the ground that the
Comanches had no 'law'. At that time the study of 'primitive law'
was itself at a rudimentary stage of development. The predominat-
ing method was what Llewellyn and Hoebel later named 'the ideo-
logical approach'; the typical field technique consisted of interview-
ing informants and asking questions of the type: 'What is your rule
about .•• ?' 'What is the result when ... ?' or 'What would happen
if ... ?' Quite apart from the general limitations and pitfalls of this
technique, it is particularly ineffective in dealing with peoples
who are inarticulate about their institutions, as the Comanches
and other plains Indians tended to be. In 1949 Dr Ralph Linton, a
leading authority on the Comanches was to remark:
Different cultures show a tremendous amount of difference in the degree to
which their patterns are consciously formalized. My experiences with
Polynesians and Comanches illustrate this: Polynesians can give you
practically an Emily Post statement of what proper behavior should be on
all occasions, whereas Comanches, when asked how they do anything
immediately answer, 'Well, that depends.' They genuinely think of be-
havior as a range of unlimited, individual, freedom of choice, although
when you take a series of examples of behavior ••. you find actually quite a
high degree of uniformity.'
 THE CHEYENNE WAY 155
Thus, apart from the definitional question whether 'primitive law'
was 'law properly so called', there was a practical methodological
problem of ascertaining what were the customary norms, if any, of a
people like the Comanches.
Hoebel presented this problem to Llewellyn at their first meeting
in June 1933; Llewellyn immediately outlined the methods he
would use in investigating the legal processes of an American Indian
tribe. As he talked he made notes. Hoebelleft the interview with the
notes which, he claims, provided the basis of his field method during
the ensuing years. This method, an adaptation of the case method,
will be considered in detail below. Llewellyn became Hoebel's super-
visor for his doctoral thesis, which Hoebel successfully completed in
1934,6 thereby confounding the sceptics. In 1935, after a less success-
ful project among the Shoshones, 7 Hoebel suggested that the 'law-
ways' of the Cheyenne Indians might be a fruitful field for study. The
Cheyennes had for more than a century led an adventurous nomadic
existence on the Great Plains west of the Mississippi River; the main
reason for choosing them was that they were known to have had
developed institutions with coercive power vested in an organized
body, which suggested that their ways of dispute-settlement and of
preserving order might have been more institutionalized than was
the case with the Shoshones. Hoebel started fieldwork among the
Northern Cheyennes in the summer of 1935 and towards the end of
the summer Llewellyn, accompanied by his economist wife, Emma
Corstvet, joined him at Lame Deer in Montana for ten days. This
was Llewellyn's first fieldwork among American Indians, and the
only period he spent among the Cheyennes. This fact is indicative of
the fairly clear division of the labour involved in the production of
The Cheyenne Way. Hoebel did nearly all the fieldwork and collec-
tion of data and wrote the first draft of the middle section of the
book, which is primarily descriptive. Llewellyn invented and subse-
quently developed the theory of investigation which guided in large
part the collection and interpretation of data. He was also primarily
responsible for the general theoretical and jurisprudential matrix.
Although his visit was short, it was in fact an extraordinarily
fruitful ten days, in that Hoebel had saved up two most promising
informants, Stump Hom and Calf Woman, and in addition to
intensive and very productive sessions of interviewing, they attended
a Peyote meeting and a number of informal social gatherings.
Hoebel returned alone to the field in the summer of 1936.
156 KARL LLEWELLYN AND THE REALIST MOVEMENT

A lengthy period of digesting, interpreting, drafting and rewriting

preceded the publication of The Cheyenne Way in 1941. The
finished product both in style and emphasis bears the unmistakable
stamp of Llewellyn. The prose is more disciplined than usual, but
the vigour and ebullience are still there. A vivid impression of the
Cheyennes emerges from the book, but its essential significance is
theoretical. A more straightforward and informative description
of Cheyenne culture is to be found in Hoebel's admirable mono-
graph The Cheyennes, Indians of the Great Plains, published nine-
teen years later. 8 Apart from the new light that it threw on a particu-
larly interesting tribe, The Cheyenne Way is significant in several
particular respects. First, it contains the first full statement and
application of the 'case method' in a study of tribal law; second, it
is an outstanding example of interdisciplinary cooperation. Third,
the Cheyennes are presented as an example of a so-called 'primitive'
people who had a genius for handling social conflict. Fourth, it
marks an important stage in the development of Llewellyn's ideas;
and finally, the book contains an important statement of Llewellyn's
'law-jobs' theory. The first four matters will be treated in this
chapter, but consideration of the fifth will be postponed until later,
when the 'law-jobs' will be considered in the context of Llewellyn's
general sociology of law.
The authors' enthusiasm for Cheyenne culture is apparent
throughout the book, culminating in a final chapter, which has not
inappropriately been described as 'almost a prose poem in praise of
Cheyenne juristic method'. 9 Their 'legal genius', the beauty of their
methods, the 'juristic poetry' of the results are eulogized in terms
that imply that it was almost an everyday matter for the Cheyennes
to produce 'juristic work which in another culture would make the
reputation of a Solomon or a Marshall or a Njal'. 10 It is not sur-
prising that such lavish praise should have provoked some sceptical
comments. However, any suggestion that the authors' enthusiasm
seriously reduces the scholarly value of their work is to be dis-
counted. It is possible to retain one's respect for the work while
agreeing with Lowie11 that it probably painted an over-romantic
picture and exaggerated the extent to which the deftness of the
Cheyennes in disposing of friction is unique or exceptional among
tribal societies. The exuberant praise is a refreshing contrast to the
patronizing style of some accounts of so-called 'primitive' tribes.
The Cheyennes were somewhat inarticulate, they lacked de-
 THE CHEYENNE WAY 157
veloped legal forms or a sophisticated system of concepts. What,
then, constituted their 'legal genius'?
•.• we are referring to the classical Roman jurist's ways of work, the deftness
and boldness of line with which the apt solution is marked in swift, sure
strokes that fit at once justice, policy, and the given body oflegal and social
institutions - those ways of work which are the modem Romanist's delight
and his despair. 11
Most of the examples used as concrete illustrations of this admired
'Cheyenne Way' show shrewdness and ingenuity. Thus praise is
given to a device used for detecting the mother of an aborted
foetus/ 8 to the invention of a solution of an unprecedented
problem,U to the drawing of distinctions11 and to the making of a
carefully limited exception to a general rule. 18 Non-insistence on
the literal performance of a promise which was performed in the
spirit and other examples of a refusal to be tyrannized by forms are
cited with approvalY More general indications of Cheyenne
achievement are said to be the elimination of the feud, limited resort
to appeals to the supernatural for assistance in fact-finding, and a
frugal but effective use of legal fictions. Much of the authors'
enthusiasm is directed to the results of particular cases, results
which they consider to be apt, 'inevitable' and even 'beautiful'.
These results are admired as solutions to problems and the crux of
the claim put forward for Cheyenne 'legal genius' is that this was a
tradition that fostered an instinct for creative problem-solving. The
most persistent of all problems for the man of law is reconciling the
conflicting demands of 'law' and 'justice'. This, it is claimed, the
Cheyennes succeeded in doing:
Even if you wish to avoid subjective valuational judgments, you must
concede, as was said earlier in regard to 'legalism', that such opposition
produces a strain in the culture which is bothersome. 'Law' is, in function,
a means to reach much the same ends which the feeling of 'justice' also
reaches for. When the two grow distinct, the tool 'law' has ceased to be
clean-shaped to its reason. And what the Cheyenne law-way shows here,
for any man to see, is that a significantly high development of certainty and
clarity, of prospective outcome, felt even by most litigants in the heat of
controversy, can be achieved on a not unelaborate scale, without the growth
of such 'law' and 'legal procedure' as rigidifies upon itself, and comes so
into opposition with the felt justice of a newer generation. The Cheyenne
law-way shows more. It shows that developed ritual, together with some
quantum of very clear rule and imperative procedure, can be handled in
158 KARL LLEWELLYN AND THE REALIST MOVEMENT

favorable circumstances with flexibility, in terms of need, yet with no sacri-

fice at all of feeling for certainty and form. 1 •
How much should the personal enthusiasms of the authors be dis-
counted in this context? Undoubtedly there is room for differences
of opinion about some of the solutions to the cases. Not every one
would approve of an identification parade in which all the women of
the tribe had to expose their breasts for public inspection for signs
of lactation;19 not all would accept that the soldiers acted 'soundly'
in almost lynching Red Owl, 20 and so on. While we are rarely left
in doubt as to the authors' reaction to these solutions, they are less
informative about Cheyenne reactions. It may be argued that since
there is room for disagreement about what constitutes 'justice' in
some of these situations, not all the authors' claims that 'law' and
'justice' have been reconciled are substantiated. Similarly, some
people may feel that the Cheyennes were somewhat cavalier in their
treatment of accepted forms and that a more formalistic approach
would be preferable, just as there will always be lawyers who prefer
'the formal style' to 'the grand style'. There is some force in such
criticisms but fortunately they are not as damaging as may at first
sight appear. The authors' data are distinguishable from their reac-
tions to them. We may accept as accurate the account of the case of
Chief Eagle's father but disagree with the opinion that this was a
'superb' solution. 21 The picture that we are given of Cheyenne
juristic method is for the most part coherent and convincing and
some of the claims for it are clearly substantiated. It seems reliable
as a description to say that the Cheyennes had effective means of
controlling friction within their society and that this effectiveness
is due in large part to a problem-solving approach. Furthermore
Llewellyn and Hoebel's admiration for this approach is not by any
means idiosyncratic; many people on reading their account will
agree that what is described, if it is accurate, is admirable. This
appears to have been the reaction of moat commentators; in so far
as the authors' enthusiasm has not been infectious, criticism has been
levelled at exaggerated praise rather than at the idea that the
Cheyenne way was worthy of praise at all.

THE THEORY OF INVESTIGATION

The collection of data and the manner of presentation were guided
by a carefully articulated theory, another good example of the self-
 THE CHEYENNE WAY 159
consciousness of Llewellyn's realism. The Cheyenne Way has been
particularly influential in respect of methodology and for this
reason this aspect of the work deserves to be examined at length.
The authors begin the exposition of their 'theory of investigation'
by outlining three main approaches open to them. The first, 'the
ideological approach', concentrates almost exclusively on norms or
rules which express notional patterns of conduct, 'ideal patterns',
'right ways', against which actual behaviour is to obe measured. The
ethnological work of Post and Kohler and the modern Restatement
of African Law are examples of this approach. 22 The subject-
matter of tribal law consists of rules which can be recorded in the
form of a quasi-code or restatement, whether or not they are fully
articulated by the people subject to them. In this approach the
emphasis is almost exclusively on perspectives, i.e. on what people
think.
There are a number of difficulties about this rule-centred
approach. First, in some societies people do not think in terms of
rules: 'A Comanche, or a Barama River Carib does not like to think
that way. He finds trouble in reducing such general "norms" to ex-
pression or in stating a solution for an abstract or a hypothetical
case.' 23 Secondly, neat collections of statements of rules may not by
themselves adequately explain the results of decision-processes nor
the part played by such rules in these processes. It is sometimes for-
gotten that rules do not perform identical functions in all contexts.
Several anthropologists have observed that in some societies actual
settlements of disputes frequently do not conform with what are held
out to be the accepted norms of the society. For instance, Gulliver
reports that among the Arusha of Northern Tanganyika (now
Tanzania) there are commonly enunciated and accepted norms of
behaviour and these norms are regularly quoted during the
process of settling disputes between members of the tribe. Yet,
says Gulliver, 'Whilst it )Vould be incorrect to say that an agreed
settlement of a dispute never wholly conforms with the relevant,
socially accepted norm, it is true to say that such precise conformity
is the exception.' 2'
The divergence between stated norms and actual results is not
restricted to preliterate societies. Nor is the related phenomenon
of 'normative ambiguity'-the coexistence of sets of norms which
conflict or which at least have opposing tendencies. 2 ~ Llewellyn
himself convincingly illustrated the point with reference to the
160 KARL LLEWELLYN AND THE REALIST MOVEMENT

rules of interpretation of statutes by placing a collection of those

rules, each backed by authority, into two parallel columns, with each
rule in the left-hand column countered by an opposing rule in the
right-hand column. 28 Another limitation of 'the ideological approach'
is that it tends to ignore such phenomena.
Not all of Llewellyn and Hoebel's predecessors had been wedded
to the ideological approach. In particular, Malinowski, Rattray and
Barton had published outstanding studies which revealed a healthy
scepticism about generalized statements of rules and which were
based on sustained first-hand observations of actual behaviour.
'The norms are there, but they are buried in a rich lode of fact.' 27
The authors of The Cheyenne Way admired these works, but they
found them deficient in two respects: first, the descriptions of
behaviour were over-generalized, lacking in detail and failing to
give a complete picture of how things actually worked. Secondly,
they tended to concentrate on substantive law, neglecting the
procedural aspects: 'If law, as the students of Anglo-American
jurisprudence have long held, is secreted in the interstices of proce-
dure, much is obviously missed in the substantive over-emphasis
characteristic of the descriptive approach.' 28
Llewellyn's main contribution to anthropology was to introduce a
tool that corrected these two defects, i.e. the detailed analysis of
actual disputes. This form of 'case method' is not to be confused
with the Langdellian method of instruction nor with the standard
use of cases by common law writers of treatises and articles. It is
related to both, but it is distinct from them. Still less should it be
confused with the use of hypothetical examples in questioning
informants. The 'trouble case method' consists of examining in
detail the processes involved in settling actual disputes. What hap-
pened, what each participant did in relation to the dispute, what
steps were taken by what other persons, the final outcome, the
reasoning of the deciders, the effects of the decision on the parties
themselves, on future trouble cases and on the general life of the
group are to be considered in depth. 'A case, a situation, was not to
be let go until it had been wrung of its last possible implication for
the whole.' 29 In The Cheyenne Way over three hundred pages of
interpretation rest largely on this kind of treatment of only fifty-
three cases.
The authors made a number of claims for the method : by studying
actual cases the phenomenon of competing norms can be perceived
 THE CHEYENNE WAY 161

and understood; it overcomes the problem of refusal or inability of

informants to articulate norms; the extent of coincidence or
divergence between articulated norms and the outcomes of dispute-
settlement processes can be checked; trouble cases show how
established forms are in fact used, which is more illuminating than a
bare statement of the form; the relationship between the 'law' of the
group and the 'sub-law stuff' of each sub-group may be brought out
by the study of disputes; in a crisis one can actually see the culture
at work; and finally, trouble-cases are in themselves important
phenomena:
The case of trouble, again, is the case of doubt, or is that in which
discipline has failed, or is that in which unruly personality is breaking
through into new paths of action orofleadership, oris that in which an ancient
institution is being tried against emergent forces. It is the case of trouble
which makes, breaks, twists, or fiatly establishes a rule, an institution, an
authority. Not all such cases do so. There are also petty rows, the routine
oflaw-stuffwhich exists among primitives as well as among moderns. For all
that, if there be a portion of a society's life in which tensions of the culture
come to expression, in which the play of variant urges can be felt and seen,
in which emergent power-patterns, ancient security-drives, religion, politics,
personality, and cross-purposed views of justice tangle in the open, that
portion of the life will concentrate in the case of trouble or disturbance. Not
only the making of new law and the effect of old, but the hold and the thrust
of all other vital aspects of the culture, shine clear in the crucible of conflict. a 0
The authors might have stressed two other points. First, their method
of presentation facilitates a relatively clearcut distinction between
data and interpretation. One weakness of many of the works in
the ideological tradition is that no such distinction is observed; often
an element of interpretation is of necessity involved in the process
of formulating a bare statement of rules. 31 Secondly, the illumina-
tion of the general by concentrated focus on the particular has close
parallels with drama, in that the subject-matter is brought to life
in a way that is not often achieved by a flat description. Although
The Cheyenne Way contains comparatively little straightforward
information about the Cheyennes, it offers profound insights into
their culture, together with a vivid impression, coloured no doubt by
Llewellyn's imagination, of its flavour and atmosphere and to use
Malinowski's phrase, the other 'imponderabilia of native life'.
Larger than life characters, the wise High Backed Wolf, the mean
162 KARL LLEWELLYN AND THE REALIST MOVEMENT

Cries Yia Eya and the wilful Sticks Everything Under His Belt stalk
the pages adding entertainment to illumination.
A possible criticism of the trouble case technique is that it is
'anecdotal', in the sense that crises are often not typical of ordinary
life and that the cases selected for intensive analysis may well be
untypical even of crises. By concentrating on the unusual a writer
may give a distorted picture of the culture he is studying. This is
especially likely if the epoch-making case is preferred to the 'petty
rows, the routine of law-stuff' referred to above. Furthermore, if
each case is to be analysed in detail and depth, only a relatively small
sample is likely to be used, with a corresponding decrease in the
chances of its being representative. These would be valid criticism
of a work which relied on this method to the exclusion of all others,
even if care was taken to obtain a spread of cases. However,
Llewellyn and Hoebel insisted that the intensive analysis of cases
was not the only technique that they recommended. The normal
field techniques of the anthropologist were a necessary supplement
to the study of cases. Their chapter on method was not intended
as a substitute for a handbook on field-techniques. 82
In The Cheyenne Way itself the potentialities of the technique
could not be fully exploited. The book, written in the 'ethno-
graphic present', relates to the period 182o-8o. Hoebel's main field-
work was done over fifty years later, and the cases reported are based
almost entirely on hearsay and tradition. The 'trouble case method'
is most effective and reliable when it is based on first-hand observa-
tion, and this was obviously not possible in the circumstances. The
authors were fully aware of the dangers of relying on accounts by
informants of events of long ago and they took great pains to cross-
check different versions and to test reliability in other ways. They
themselves were reasonably satisfied with the historical accuracy of
most of their data; several reviewers of the book expressed admira-
tion at the combination of caution and ingenuity that was displayed
in dealing with such limited and tricky material. The authors were
for the most part restricted to examining what their informants
believed to have happened. It is, therefore, important to point out
that even if the informants' accounts of cases were entirely fictitious
they would still have been significant, for the stories were expressed
in terms of Cheyenne concepts and are told against a background
of actual institutions which are presupposed and taken for granted:
'war party', 'council of Forty-Four', 'Buffalo Chier, 'Dog Soldiers',
 THE CHEYENNE WAY 163
a tribal hunt, and so on. An essential part of understanding the
institutions of a society is to grasp the ways of thought of the people
whose institutions they are. Myths and stories are as effective a way
of getting at these 'perspectives' as are direct questioning or the
recording of discussions that take place in dispute-settlement and
other processes. In so far as stories and myths are considered to be
significant by the informant, they are primary sources in respect
of understanding the concepts, values, attitudes and thought
patterns of the informants. The authors grasped this point, but they
are open to the criticism that they did not press it far enough. As
Hoebel himself has admitted, they could also have fruitfully subjec-
ted the Cheyenne language to much more intensive analysis. It was
left to others, notably Gluckman and Bohannan, to wed the tech-
niques of linguistic analysis to the gift of realism, the 'trouble case'.
Lawyers, especially English-trained lawyers, when they have
devoted their attention to tribal law have rarely adopted the
'trouble case technique'. This can be seen by a glance at the fast-
developing literature of 'African customary law', a literature which
is remarkable for the disappointing lack of communication and
interaction between lawyers and anthropologists. 33 The gap is
partly to be explained in terms of different objectives, and different
assumptions about the subject-matter, but above all in terms of
differences in method. Even when lawyers have been modest enough
to restrict themselves to a single tribe, they have normally been
content to adopt the methodology of the English legal textbook
writer, a methodology (if such a term can be appropriately applied
to so unselfconscious a tradition) which, however well or ill-adapted
it may be to the English context, often fits African customary law
as comfortably as an Eton jacket would fit a surfbather. Generally
speaking the lawyers have stayed close to the ideological approach;
in respect of their use of cases they have tended to follow the
example of English textbook writers rather than The Cheyenne Way.
One result of this has been a tendency to consider substantive
doctrines in isolation from the procedural contexts of their applica-
tion and operation.
On the other hand, the leading anthropological works on
customary law in Africa and elsewhere, although they do not
conform to a single stereotype, have nearly all followed the ex-
ample of The Cheyenne Way in rejecting 'the ideological approach'
as being, at best, incomplete and in nearly every instance in making
164 KARL LLEWELLYN AND THE REALIST MOVEMENT

the detailed analysis of 'trouble cases' a crucial focus of attention.

In so doing they have, inter alia, avoided the dangers of segregating
'doctrine' from 'process,' or 'substance' from 'procedure'; there is a
certain irony in thus finding the anthropologists to be more direct
inheritors of Maitland's teaching than his natural descendants, the
common lawyers, when they have ventured outside their own
culture. In sum, in recent studies of 'tribal' or 'customary' or
'primitive' law, whereas lawyers have rarely escaped from the
clutches of a blinkered formalism, most anthropologists have been
working in harmony with Llewellyn's brand of legal realism.
A proponent of the ideological approach might complain that
in The Cheyenne Way the chapters on homicide, marriage, property
and inheritance do not provide as systematic or as detailed informa-
tion about these topics as might have been obtained if a different
method had been adopted. From this he might be tempted to infer
that 'the case method' may be appropriate to the study of legal
process but not of legal norms. This argument is seductive, but the
inference is unjustified. The main function of the chapters in ques-
tion was to provide concrete illustrations of Cheyenne juristic method
rather than to deal exhaustively with these topics for their own
sake. The authors' prime concern was to analyse how the tribe hand-
led the basic jobs of dispute prevention and dispute settlement and
only incidentally to describe other aspects of their culture. It is
wrong to infer from this that they denied that the Cheyennes had
legal norms, or that the case method is not capable of being used
in discovering what are the norms of a particular tribe. To argue
thus involves confusing a plea for caution in formulating statements
of norms with a claim that such formulations are impossible.
The Cheyenne Way itself contains a cautious statement of the
law of killing expressed in normative form, prefaced by the caveat
that this is 'a somewhat modernized and consciously articulate state-
ment of the norms, as they appear in action, in the recorded cases
and opinions'. 8' Scattered about the book are many other examples
of statements of Cheyenne rules. Hoebel himself in a later work
attempted to introduce an ideological element at a further remove.
He sought to examine a number of cultures to determine their
'jural postulates', by which he meant the dominant values that guide
and limit the devices actually made in any stable group. In his view
'every society, primitive or civilized, that has a law system has its
 THE CHEYENNE WAY 165
jural postulates'. Thus, according to him, the postulates of the
Cheyenne legal system could be expressed in the following form:
Postulate I. Man is subordinate to supernatural forces and spirit beings,
which ar1 b~muoknt in Mture.
Corollary I. Individual success and tribal well-being are abetted by the
beneficent assistance of the supernaturals.
Postulate II. The killing of a Cheyenne by a fellow Cheyenne pollutes the
tribal fetishes and also the murderer.
Corollary I. Bad luck will dog the tribe until the fetishes are purified.
Corollary 2. The murderer must be temporarily separated from the social
body.
Corollary 3· Violent behavior that may lead to homicide within the tribe
must be avoided.
Corollary 4· Killing an enemy while in the presence of a tribal fetish is
inimical to the supematurals.
Postulate III. The authority of the tribal council is derived from the super-
naturals and is supreme over all other elements in the society.
Postulate IV. The individual is important and shall be permitted and en-
couraged to express his potentialities with the greatest possible freedom
compatible with group existence, but at the same time the individual is
subordinate to the group, and all first obligations are to the maintenance of
the well-being of the tribe.
Corollary I. Rehabilitation of the recalcitrant individual after punishment is
extremely important. u
It would be interesting to know what Llewellyn thought of this
statement of Cheyenne jural postulates. One suspects that he may
have felt uneasy about them and it is perhaps significant that, apart
from the restatement of the law of killing, no such statement appears
in The Cheyenne Way. However, Llewellyn was not dogmatic in
his anti-dogmatism and he would have been more likely to have
taken direct issue with Hoebel's belief that every system of law has
jural postulates that can be articulated in so dogmatic a fashion,
making no differentiation between the relative importance of the
various postulates, indicating no exceptions and put forward in the
form of a quasi-code. 88 The crux of the matter is that Hoebel's
table can be safely regarded as a convenient summary of some
particularly influential general ideas and assumptions, but there is a
danger that it may be interpreted as something more pretentious,
perhaps even as a purportedly complete logical system from which
decisions were deduced; seen in this way, it would be both unsatis-
factory from the point of view of a logician and misleading from
166 KARL LLEWELLYN AND THE REALIST MOVEMENT

the standpoint of a realist. It must be recalled that the ideological

approach was not criticized because it was wrong, but was rather
subject to certain caveats, viz: (i) bare statements of rules are not
enough; (ii) bare statements of substantive rules divorced from any
procedural context are apt to be misleading; (iii) confident dogmatic
statements of rules should, in the first instance, be approached with
caution, for they may oversimplify. Similar reservations are applic-
able to attempts to state 'the' basic postulates of a legal system. It
is almost unnecessary to say that Hoebel respected these caveats.

REACTIONS
When The Cheyenne Way was published it was immediately recog-
nized to be a work of major significance. Malinowski, Boas, Redfield,
Lowie, Levi-Strauss, Huntington Cairns, Timasheff and Pound
were among those who praised it. 27 It is indicative of the breadth of
the authors' frame of reference that different reviewers considered
it from the point of view .of its significance for anthropological
method, sociological jurisprudence, legal practice in the United
States, juristic method, the economics of primitive societies,
comparative law, and interdisciplinary cooperation. Typically the
irrepressible Llewellyn complained that the book had elicited no
notice from psychologists.88 More disappointing, however, was the
fact that the book made a much greater impression upon anthro-
pologists than upon jurists. By and large this has continued to be the
case, as can clearly be seen by a brief survey of the subsequent litera-
ture of 'primitive law'. Few anthropological studies in this area have
not been influenced, directly or indirectly, by The Cheyenne Way.
Perhaps Max Gluckman, whose Barotse studies have added so
much to the subject, may be made to speak for them:
Up to the year 1940 reports on the settlement of disputes among tribal
peoples were relatively meager, and few of them worked out a detailed
analysis of how mediating, arbitral, or judicial procedure and logic were
applied to a series of cases...• [In the CheyenM Way Llewellyn and Hoebel]
raised new problems and set new standards in the analysis of triballaw.n
The Cheyenne Way acted as a general stimulus to anthropolo-
gists, not least because it convinced them that the law-ways of pre-
literate peoples were worthy of attention and were capable of study;
it is not infrequently cited on points of substance; undoubtedly the
most concrete indication of itsinfluence is the extent to which the
 THE CHEYENNE WAY 167
'trouble case' method has become a standard tool of English-speak-
ing anthropologists working in the field of tribal law. 40
Interdisciplinary matchmakers might learn something about the
conditions of successful collaboration from this unique example of
a marriage between law and anthropology which lasted until the
death of one of the partners. 41 The success was due in part to
common, in part to complementary, characteristics. Both men were
interested in jurisprudential questions and this provided an identity
of objectives, the absence of which is the first obstacle to this type of
collaboration. Both favoured the closer integration of the social
sciences. Temperamentally they were well suited: each had a touch
of the poet that enabled him to achieve almost instant rapport with
informants and to appreciate the 'beauty' of Cheyenne tech-
niques/2 in other respects their characters were complementary,
never more so than in the matter of obtaining a balance between
imaginative insight and hard fact. Llewellyn's genius lay in devis-
ing new approaches, he was less fitted for applying them systematic-
ally. His inclination and aptitude for sustained fieldwork were
limited. Hoebel on the other hand was both by training and
temperament an excellent field worker; a man of notable intellec-
tual humility, he was prepared to accept the role of disciple of
Llewellyn's theories. He was, of course, predisposed to accept
Llewellyn's ideas. Before they met they shared a common interest
in the dynamics and functioning of institutions with human
behaviour as the central focus. This was a meeting of realistic juris-
prudence and functional anthropology. If Hoebel had been a rebel
against Malinowski's functionalism, or if Llewellyn had been a more
orthodox lawyer, collaboration would have been harder and much
less fruitful. This basic harmony of approach was decisive in the
success of this attempt to pool the skills and knowledge of scholars
from two different disciplines. Both the relationship between
Llewellyn and Hoebel and subsequent development in the study of
tribal law are epitomized in Hoebel's striking dictum ' "Primitive
Law" is the henchman of Legal Realism'. 48
That The Cheyenne Way has been neglected by some students
of Llewellyn's jurisprudence may also be due in part to a widespread
scepticism about the relevance of the study of preliterate com-
munities to the jurisprudence of modern industrial societies. Frank
forcefully expressed the view that Llewellyn's time would have been
better spent studying the law-ways of 'Tammany Hall Indians' in
168 KARL LLEWELLYN AND THE REALIST MOVEMENT

New York; 44 some critics of The Common Law Tradition have

doubted, in a somewhat dogmatic manner, the validity of the
analogies that Llewellyn drew between the juristic techniques of
the Cheyennes and of modern appellate courts; 45 rarely is The
Cheyenne Way the subject of detailed attention in discussions of
'realism'.
His incursions into Indian law, and particularly his involvement
with the Cheyennes, mark a crucial stage in the development of
Llewellyn's thought. The inspiration for The Cheyenne Way comes
from his early realism; some of the inspiration of his later ideas came
from studying the Cheyennes. To the normal gain in self-under-
standing of any comparative work was added the particular value
of studying a simple society, that is the opportunity to study a
microcosm that can be seen in the round, relatively free from the
refinements, distractions and confusions of complexity. It is never
easy to see a modern industrial society as a whole in elemental terms.
It is much easier to do so if one has first had the experience of a
microcosm; Llewellyn's frequent use of examples from another kind
of 'primitive society', the nursery, served much the same function. 48
There are, of course, many pitfalls in comparing the simple with the
complex, but Llewellyn was not prone to underestimate the complex-
ity of things, and he was careful not to push his analogies further
than he felt was justified by repeated testing. Maitland once said:
'The traveller who has studied the uncorrupted savage can often tell
the historian of medieval Europe what to look for, never what to
find.'u Llewellyn would surely have agreed with this statement and
its implications. What he derived from the Cheyennes was not a set
of broad factual generalizations about law, but inspiration for some
new tools for functional analysis. It is fair to say that The Cheyenne
Way was a hypothesis-forming more than a hypothesis-testing book.
The Cheyenne study was the catalyst for a twofold advance in
Llewellyn's thinking: first, it marks a definite shift to a more consis-
tent and more general standpoint than previously. Llewellyn's
early private practitioner orientation has already been remarked. 48
From now on, even when considering the detailed problems of
specific participants, Llewellyn's perspective is consistently that of
society as a whole. At the same time his ideas move more easily on to
a general plane, with implications that are seen to transcend a
particular society at a particular time. The 'law-jobs' theory is a
theory about group-life that applies to almost any human group,
 THE CHEYENNE WAY 169
complex or simple, large or small. It is the foundation for a general
sociology of law that he continued to work towards for the rest of
his life.'9
The second advance is in respect of legal technology ('the job
of juristic method') : it is at the time of the Cheyenne study that the
associated ideas of 'craft', 'style', 'the job of juristic method', and
'legal aesthetics' are adopted as working concepts. In particular,
Llewellyn specifically credited the Cheyennes with inspiration for one
of the major themes of The Common Law Tradition: the idea of
the Grand Style of appellate judging:
Then a few years later, the law of the Cheyenne Indians made clear to me
what I had never before dreamed: to wit, that law and justice had no need
at all to be in conflict or even in too much tension, but could instead repre-
sent a daily working harmony. For in common with most lawyers, and indeed
with most jurisprudes, I had mostly taken for granted a sort of perpetual
struggle between the needs of regularity and form and of the precedent -
phase ofjustice on the one side and, on the other, any dynamic readjustment
of a going system to what just needed to be done. Pound had rightly stressed
shifting tides in the struggle, and that I had seen. But I had to get to the
Cheyennes in order to wake up to the fact that tension between form, or
precedent, or other tradition and perceived need requires, in nature, to be a
tension only for the singk crisis. It does not have to be a continuing tension in
the legal system as a whole, because an adequately resilient legal system can
on occasion, or even almost regularly, absorb the particular trouble and
resolve it each time into a new, usefully guiding, forward-looking felt
standard-for-action or even rule-of-law. To think of such steady readjust-
ment - what Mentschikoff calls the legal artist's job of producing a new
technical guiding form which can supply both needs at once - this was to
get a further new pair of eyes. And it was on this foundation of experience
with Cheyenne law that I became able to spot and understand the Grand
Style as I met it in the early work of our own courts. 1 0
9
Law in Our Society

Llewellyn's major published works have strong affinities with each

other but they cannot be said to form a neat pattern. Each reveals
aspects of his ideas and approach, but none brings them together
into a single coherent statement of a general theory. At first sight
Llewellyn's work appears to contrast sharply with that of system
builders like Bentham and Lasswell. He felt constricted by collec-
tions of tightly drawn definitions; 1 he tended to use vague terms
when working at a high level of generality; orderly presentation of
his ideas did not come naturally to him and on the whole he was
more concerned with 'theories of the middle range' than with
'ultimate questions'. 2
However, he was fully in sympathy with systematic thinkers in
believing in the value of seeing things in a broad perspective. He was
also anxious to fit his ideas into a single, reasonably coherent frame-
work. As early as 1927 he wrote a paper on 'Mechanisms of Group
Control', which represents his first serious attempt to state a general
sociological theory of law. 8 He was dissatisfied with it and withheld
publication. Between 1927 and 1940 he made several further
attempts, all of which were abandoned before completion.' The
preparation of The Cheyenne Way stimulated him to try again.
This time he was more successful and within a relatively short
period, in I 94o- I, he published three papers,3 which taken to-
gether with The Cheyenne Way provide a fairly full and coherent
picture of his general ideas at this stage.
Llewellyn saw these papers as only a beginning and at the time
of his death he was just about to start on yet another attempt to
make a general theoretical statement of his _position. This was to
have been his last major project. First at Harvard and Columbia
in I 948-g and thereafter at Chicago he gave a course entitled 'Law
in Our Society', which became the main vehicle for developing
 LAW IN OUR SOCIETY I 71

his 'whole view', as he called it. The mimeographed materials for

this course, together with his lectures, which he regularly recorded,
were the materials from which he planned for a long time to work
up a book on 'The Sociology of Law-Government'. 6 However, up
to 1960 first the Uniform Commercial Code and then The Common
Law Tradition had to be given priority. Mter the publication of
The Common Law Tradition in 1g6o, he still had a number of
commitments in connection with the code and he was also much
in demand as a lecturer. He was due to retire in July 1962, and he
had accepted an invitation to deliver a series of formal lectures in
Germany in the following academic year. He had intended to make
this the occasion of a final statement of his position and the text of
the lectures was to be published as a book. As a preliminary to draft-
ing the lectures, he brought together and edited a selection of his
published articles and shorter pieces on jurisprudence and related
subjects. On 5 February 1962 he wrote the preface to this book,
but eight days later he died of a heart attack. The book was pub-
lished posthumously with the title Jurisprudence: Realism in
Theory and Practice. 1
Thus Llewellyn died on the eve of starting on his last project.
All there was to show for the proposed Freiburg lectures was a
draft table of contents. This repeats almost exactly the chapter
headings of the mimeographed materials on Law in Our Society. 8
Accordingly, this extraordinary document represents Llewellyn's
la8t attempt to articulate a general theory: it is mostly in note-form,
parts of it are rather cryptic, it is incomplete and Llewellyn did not
intend it for publication. Some of it covers topics dealt with more
fully in print. Yet it is without doubt the most important of the
manuscripts left behind in the Llewellyn Papers for, despite its
limitations, it embodies not only the latest, but also in some respects
the fullest statement of a general theory. It is too condensed, too
rich in detail and is generally too Llewellynesque for any attempted
precis or restatement to be a satisfactory substitute for the original.
Some short extracts are reproduced in appendix C in the hope that
they will give an indication of the nature and style of the manuscript
as well as making available some of the more important passages. 9
It requires someone who is both bolder and more patient than the
author to undertake the challenging task of working the whole up
into publishable form. Meanwhile this chapter can be treated as a
critical introduction to the manuscript as well as an attempt to
172 KARL LLEWELLYN AND THE REALIST MOVEMENT

provide a coherent answer to the question: 'What was Llewellyn's

theory of law?'

LLEWELLYN'S APPROACH TO JURISPRUDENCE

It was suggested in the first chapter that one of the main sources of
misunderstanding about realism has been that 'the realists' have
sometimes been treated as criticizing the articulate and relatively
sophisticated theories of jurists of the Austinian school, when in fact
the main target of their attacks on 'formalism' were largely inarticu-
late and unsophisticated working theories of academic lawyers like
Langdell and Beale and, less directly, the assumptions underlying the
approach of many American lawyers and judges.10 At the root of
such -misunderstandings has been a tendency to treat all legal
theories as comparables, because they fall within the sphere of
'jurisprudence'.11 Before attempting to answer a question of the
kind, 'What was X's theory of law', it is wise to face up to a prelimin-
ary question: 'What did X consider to be the nature and function
of a "theory of law"'? It is particularly important to do this in the
case of Llewellyn, who used the terms 'jurisprudence' and 'legal
theory' interchangeably and not very precisely:
Jurisprudence means to me: any careful and sustained thinking about any
phase of things legal, if the thinking seeks to reach beyond the practical
solution of an immediate problem in hand. Jurisprudence thus includes any
type at all of honest and thoughtful generalization in the field of the legal. 11
Llewellyn sometimes roughly divided jurisprudence (or legal
theory) into three branches, reflecting what he termed 'the what, the
whither and the how of law': legal philosophy (concerned with
'ultimate' questions of ends and perhaps also with fundamental
existential and epistemological questions), legal science (concerned
with empirical description), and jurisprudence, or 'prudentia iuris'
(the study of the machinery of law-and-government and the methods
and techniques of participants in legal processes). In lectures he
would illustrate the scheme by means of a chart: 18

Whither? Why? What? How?

Theory: Political Philosophy Science Prudence

Legal Philosophy Science Prudence

 LAW IN OUR SOCIETY 173
In Law in our Society Llewellyn's main purpose was to outline his
own 'working whole view' and to encourage his students to develop
their own. Although he recognized the need for specialization, he
had little sympathy with what might be termed the Royal Tennis
Tradition in jurisprudence,a in which it becomes a quaint, intricate,
esoteric game, remote from contemporary life and understood by
few beyond the handful of people who actually play it. Juris-
prudence was too important in his view to be left to the experts.
In particular, he believed that even the most humble practitioner
could benefit both professionally and personally from having an
articulate and coherent working theory. Every lawyer needs to
understand his situation and his role, to clarify his aims and have a
general conception of how to set about attaining them, and to be
able to see all this in a broad perspective. 15 In his later work,
especially in Law in Our Society, Llewellyn distinguished between
'jurisprudence for the hundred', 'jurisprudence for the hundred
thousand', (for the bar and for the intelligent laymen), and 'juris-
prudence for the hundred million' .18 In a very high proportion of
his teaching and writing he denied, not always convincingly, that he
was concerned with 'jurisprudence for the hundred' and claimed to
be operating at the level of 'jurisprudence for the hundred thous-
and'. In his teaching he consistently treated his students as intend-
ing private practitioners and a chief aim of his course on 'Law in
Our Society' was to encourage each student to start to work out for
himself a reasonably coherent and articulate working theory. In his
writings, too, he regularly emphasized that jurisprudence had an
important practical role to perform. 17
In working at the level of 'jurisprudence for the hundred thous-
and', Llewellyn tended to make certain disclaimers about what he
was doing. For instance, in Law in Our Society he explicitly excluded
'professional' philosophy; he maintained that his descriptive
generalizations were 'pre-scientific'; the values he accepted were no
more than 'fighting faiths', bolstered by 'the best reason we can
muster'; his concepts were expressed in 'roughly workable, not
"accurate" phrasing'; the basic approach was that of 'horse-sense' .18
The title 'Law in Our Society' emphasized its American orientation.
In short, Llewellyn claimed neither universality nor refinement for
his ideas in this context. This was typical of most of his published
writings.
Such disclaimers, and Llewellyn's personal preference for the
174 KARL LLEWELLYN AND THE REALIST MOVEMENT

'low' philosophy of law could be misleading if taken out of context.

It may be disconcerting to the specialist jurist to find Llewellyn
adopting the persona of a folk-philosopher or sage. Does he really
invite treatment as a latter-day Ben Franklin or an academic Mr
Dooley? Or is he merely putting on a defensive mask to protect him-
self from judgment by scholarly standards? Is he being unduly
modest or has he, by setting his sights too low, forfeited all claims to
be treated seriously as a jurist? And is he espousing a crassly
utilitarian view of theory?
A fairly confident negative can be returned to all those questions.
It would be a mistake to see Llewellyn as a mere popularizer: he was
a sophisticated jurist (sometimes too sophisticated even for the
hundred, it seems), and he expected to be treated as a heavyweight.
Some of his disclaimers may be ignored as being unnecessarily
modest or self-protective. Moreover, as he well realized, the criteria
by which the value and limitations of contributions to the 'high' and
'low' philosophies are to be assessed are not fundamentally different.
When Llewellyn is vulnerable to criticism he is fair game, but for
criticism to be fair account needs to be taken of his concerns and
objectives. In the context of his time it was quite natural that
Llewellyn should prefer the role of sage to that of pharisee. As a
generalist he was aware of his limitations as a philosopher and
sociologist. He was naturally attracted by the down-to-earth and the
folksy. And the absence of a strong taught tradition of jurisprudence
in America, together with the general climate of opinion, tended
to make the role of sage an honoured one. Thus, for example, sages
were sometimes made judges and judge-sages tended to become
popular heroes-witness Holmes, Brandeis, Cardozo, Frankfurter
and Learned Hand. A similar combination of a search for usable
theory with a desire to communicate directly with non-experts
is to be found in the work of Beard, Robinson and Dewey. 18
The conception of a working theory for participants underlies
Llewellyn's approach to jurisprudence. The crux of the matter is
that if the 'hundred thousand' are to benefit from the subject they
need something simple, usable and useful; that simplicity is not to be
confused with superficiality, nor utility with the banausic, and that
jurisprudence as a subject has had to pay too heavy a price for the
perfectionist tendencies of some of its high priests.
 LAW IN OUR SOCIETY 175
LAW-GOVERNMENT AS AN INSTITUTION:
THE LAW-JOBS THEORY
The starting-point for Llewellyn's 'working whole view' was 'the
basic theory of the institution of law-government', commonly refer-
red to as the 'law-jobs theory'. 20 The central proposition of this
theory is that there are certain needs that must be met for a human
group to survive as a group and for it to achieve the purposes for
which it exists. 21 This applies equally to very small groups, such as
a married couple or a partnership, and to the largest and most
complex groups, such as a nation or state or even the world commun-
ity. It is applicable to groups with a limited raison d'etre, for instance
a school debating team or a football club, as well as to groups that
are related to many phases of the lives of their members, such as a
family or tribe. It applies to groups which are ephemeral as well as
to those which are enduring. The needs arise particularly from a
facet of human nature, viz. that human beings have drives, desires
and interests which tend to be incompatible. In so far as those
'divisive urges', as Llewellyn called them, are a source of actual or
potential conflict and in so far as conflict is inimical to group-
survival and to concerted effort to a common end, conflict-preven-
tion and conflict-resolution are a necessary precondition of group-
survival and group-effectiveness.
Llewellyn classified the main needs ('jobs') into six categories: (i)
'adjustment of the trouble case'; (ii) preventive channelling of
conduct and expectations'; (iii) 'preventive rechannelling of conduct
and expectations to adjust to change'; (iv) 'arranging for the say and
the manner of its saying' (allocation of authority and procedures for
authoritative decision-making); (v) provision of direction and incen-
tive within the group ('the job of providing Net Positive Drive');
and (vi) 'the job of Juristic Method'. 22
Groups which qualify to be called 'societies' have institutions,
more or less developed and specialized, the peculiar function of
which is to perform these 'law-jobs'. In Llewellyn's later usage 'law-
and-government' (or 'law-government') is the term used to refer to
such institutions. In society 'law-government' is the main but not
the only institution for performing the six jobs listed above;
conversely 'the law-jobs' are the main but not the only jobs of the
institution of law-government.
In one of his summaries, Llewellyn continues:
176 KARL LLEWELLYN AND THE REALIST MOVEMENT

In the doing of each of these law-jobs one can distinguish a bare-bones

aspect which runs no further than the keeping of a society (or indeed of any
group) together and alive; and, in addition, two ideal aspects. The one ideal
aspect has to do with efficiency of operation. The other has to do with the
realization of man's aspirations.
Around the law-jobs (which are inherent in the nature of any group, big
or little) there develop (in any group) activities. When these activities be-
come distinct enough to be recognizable as such, the stuff oflaw has thereby
become observable as such. When men specialize in such activities, the men
of law become recognizable. Both the men and the stuff show, as distinguish-
ing marks, a more-or-less regularity of action, and show felt standards,
more or less articulate, as to the manner and direction of such action. It is
ill-advised to take either the practices or the standards, to take either the
men or the practices-and-standards, as being alone somehow the substance
of law. The going institution takes them in, all together. 'Precept' and
'principle,' e.g., to be part of a legal system, must be somehow actually at
work in that system, and only in and through men and ideas held by men
can they be at work.
Practice, again, is the bony structure of a legal system. Yet practice is no
part of law except as it comes wrapped in and is measured constantly against
the held norm or felt ideal. Men are the life blood of a legal system, yet men
are not even of it, save as bedded in a context of tradition, both existent and
becoming, which shapes the men even as it is being shaped by them.
Out of the conjunction of activities and men around the law-jobs there
arise the crafts of law, and so the craftsmen. Advocacy, counseling, judging,
law-making, administering - these are major groupings of the law-crafts.
But mediation, organization, policing, teaching, scholarship, are others.
At the present juncture, the fresh study of these crafts and of the manner of
their best doing is one of the major needs of jurisprudence. 8 8
Llewellyn considered 'institution' to be 'the central and most
important concept of social science'. 2 ' When asked what he meant
by the term, he used to refer his questioners to a well-known article
by Walton Hamilton, which starts as follows:
Institution is a verbal symbol which for want of a better describes a cluster
of social usages. It connotes a way of thought or action of some prevalence
and permanence which is embedded in the habits of a group or the customs
of a people. In ordinary speech it is another word for procedure, convention
or arrangement. n
Hamilton maintained that it is impossible to try to give a detailed
description of an institution in isolation from its social context, the
edges are too blurred: 'Even if it is deliberately established an insti-
tution has neither a definite beginning nor an uncompromised
 LAW IN OUR SOCIETY 177
identity .•• It cannot be shown in perspective or recognized in detail
by the logical method of inclusion and exclusion.' 28
The borderlands of 'institution' are accordingly rather vague.
Hamilton also emphasized the imperfection of institutions and the
part played by chance as well as intent in their development.
Llewellyn's usage of 'institution' is slightly different:

An institution is in first instance organized activity built around the doing of

a job or a cluster of jobs. A craft is a minor institution. A major institution
differs in that its job-cluster is fundamental to the continuance of the
society (or group) with typical resulting complexity.u

This is a more explicitly functional definition than Hamilton's.

However, Llewellyn recognized that institutions could be 'crescive',
in Sumner's terminology, 28 i.e. they could grow up as a result of
instinctive response to need as well as by conscious invention, and
he did not make the mistake of assuming that there cannot be 'func-
tional' behaviour independently of rational, articulate purpose. 29
Llewellyn's emphasis on the concept of 'institution' is understand-
able. By defining it in behavioural terms he was able to make human
behaviour a central focus of his jurisprudence; by taking as his
starting-point a sociological concept he hoped to facilitate commun-
ication between lawyers and social scientists; and he found positive
virtues in its vagueness. He deliberately avoided precise stipulative
definitions of abstract concepts because he could see little profit in
them and a great danger that they would be used as arbitrary criteria
of what is relevant and irrelevant to jurisprudence. 8 ° Finally,
Llewellyn claimed that looking on law as an institution ...

. • . provides two vitally serviceable points of orientation which freshen eyes

and give a cross-check on what may be there to see. For, first, a going institu-
tion has jobs to do, and its function is to get them done effectively and well.
This gives a pole of purpose and value to measure by. And, secondly, a
going institution has results in life, and must be tested by them; and those
results are capable of inquiry. The measure of the institution is, then, the
measure of how its results check in fact, in regard to the actual doing of its
jobs. 81

Llewellyn's early approach to the problem of the definition of

'law' has already been considered in the chapter on The Bramble
Bush. 32 It is now necessary to return to the topic. During the draft-
ing of The Cheyenne Way Hoebel was anxious to include a general
178 KARL LLEWELLYN AND THE REALIST MOVEMENT

stipulative definition of 'law' in the text. Llewellyn disagreed. He

set out his reasons informally in a letter:
The more I think about your universal definition of law, the less I am
disposed to like it. I find it very difficult to frame any definition which
covers the situation in a non-state, non-authority society, and also has
adequate application to a modern society. My own approach has been to
set up a Weberish 'ideal type' with a good many attributes, such as rules
with verbal form, machinery for enforcement of a recognized claim, if
needed, with exclusivity when applicable the force of the state behind
acti9n; a specialized enforcing, and litigatior• and counselling personnel, and
the like. It will take quite a while to work out in detail every attribute
necessary to present this ideal type. It will never find a complete counterpart
in life, unless an arbitrary choice is made between the elements of certainty
and of justice-- a point over which I am still puzzling.
However, setting up some such type at one pole and unpredictable chaos
at the other, we can, it seems to me, identifY certain subject-matters or jobs
which law stuff, in various degrees of primitivity or development of form or
kind (procedure for adjustment, existing either apart from or in conjunction
with, third-party personnel; supernatural sanctions existing either apart
from or in conjunction with secular, and the like) is doing or accomplishing
in any group or society. The only absolutely universal characteristics which
I find, consist in the presence of these jobs which need doing, and in a
tendency for any steps in the doing of them to take on, unless thwarted by
governing causes, some aspects of regularity in regard to both pattern and
personnel. I think this a sounder approach than any which rests upon a
criterion of rule, of rightness, or of course of conduct, or of monopoly of
force, or state command or of any other simple criterion that I have met.
The essence of an attack on the phenomena is the wherewithal to indicate
gradations. Nothing in the matter of form is universal; and any definition
built to fit primitive conditions falls down when the State steps in, not
displacing the primitive forms, but running largely beside them, and only
sometimes overlapping or conflicting. 33
No general definition of 'law' appeared in The Cheyenne Way,
but Hoebel, apparently unconvinced by Llewellyn's arguments,
included one in The Law of Primitive Man: 'A social norm is legal
if its neglect or infraction is regularly met, in threat or in fact, by
the application of physical force by an individual or group possessing
the socially recognized privilege of so acting.' 34
The difference between Llewellyn and Hoebel on this issue was
narrow. Llewellyn's refusal to commit himself to a general stipula-
tive definition of 'law' did not preclude him from elucidating his
usage of this and a number of related terms. Nor was his anlaysis
 LAW IN OUR SOCIETY I79

very different from Hoebel's. By maintaining that law was only one
of the institutions which perform the law-jobs in society, he was
committed to accepting some distinction, albeit not a rigid one,
between it and other institutions. In both 'The Normative, The
Legal and the Law-Jobs' and in Law in Our Society he went very
near to providing a definition by suggesting four characteristics
which, when combined, serve to differentiate 'legal' from other
institutions: specialized personnel or procedures recognized as
carrying the stamp of authority of the whole, supremacy within the
group, effectiveness and regularity.n This aspect of Llewellyn's
elucidation of 'law' adds little that is new and it has been improved
upon by other jurists, notably by Professor Hart. 88 In the 'Norma-
tive, the Legal and the Law-Jobs', Llewellyn also set out to elucidate
a number of terms that he himself had coined: 'Law-ways', 'Law-
stuff', 'jurid', 'skelegal', 'the Legal' (as contrasted with 'the legal'),
and 'law-wavers'. With the exception of the first two, he fortunately
made little use of these repulsive terms, consideration of which is
best confined to the obscurity of a footnote. 87
A number of points are worth making about Llewellyn's approach
to the definition of 'law'. First, he was well aware that in ordinary
usage 'law' is a word which is both vague and ambiguous. He did not
make the elementary error of assuming that there is one 'true' or
'proper' meaning of the word and he realized that any general
definition of 'law' must necessarily involve at least an element of
personal recommendation or preference. In Law in Our Society,
following the example of Pound,88 he listed a number of different
meanings that are to be found in common usage and commented:
'A "definition" which throws out any of those or similar aspects
throws out something of significance to Jurisprudence.' 89
As has already been mentioned, in the late 1940s Llewellyn adop-
ted the concept 'law-government' in preference to 'law'. His justifi-
cation for joining together 'law' and 'government' was that these
two terms are often used to refer to institutions which are primarily
concerned with the same basic function, 'the job that is funda-
mental to the existence of any society and of any social discipline
at all; it is the job of producing and maintaining the groupness of
a group.' 40 In trying to develop this idea he added:
The chart picture of the single institution would be a long ellipse, every point
of circumference or area related, to some degree, to each of two imaginary foci.
The one focus (never found alive) would be complete regularity utterly
I80 KARL LLEWELLYN AND THE REALIST MOVEMENT

independent of judgment and person; the other (never found alive, either)
would be non-recurrent action determined utterly by the particular acting
official's idiosyncratic and also non-habitual choice. The 'law' phases oflaw-
government are closer to the first focus; the more purely 'government'
phases are closer to the second. u
At least the first four of the six 'jobs' listed above are normally done
in a manner that approximates more nearly the 'law pole', they are
characteristically 'law jobs', the others range widely between the
poles. There are some other 'jobs', such as defence of the group,
which come nearer to the governmental pole. By this slight adjust-
ment of focus Llewellyn hoped to provide a common starting-point
for jurisprudence, politics and sociology.
Finally, it should be noted that Llewellyn was trying to construct
a theoretical model of 'law-government' as a tool of description in
lieu of a dogmatic formulaic 'definition of law'. In this he was
influenced by Weber's concept of 'ideal types'. For the traditional
litmus paper tests of 'law' and 'not law' he was hoping to substitute
a more flexible and generally more sophisticated tool of descriptive
analysis.
It is not entirely clear whether Llewellyn looked on his 'law-jobs'
theory as being more of an empirical than an a priori theory; that
is to say, it is not clear whether he wished some of his general
statements about the law-jobs to be treated as empirical generaliza-
tions capable of verification or to be treated as elucidating an
armoury of related concepts of which 'group', 'divisive urges', 'law-
government' and 'human behaviour' were the most important.' 2
He used regularly to set students the exercise of 'testing' the theory
against some group of which they had had first-hand experience.
Over the years several hundred students did this exercise and some
were stimulated to produce some very interesting papers." There
is no record, however, of any student having claimed 'to disprove'
the theory. Indeed, it is not clear how it could be disproved. This
suggests that the theory may be of a kind that is incapable of either
proof or disproof in its major aspects, because it is essentially tauto-
logical. Take, for instance, the proposition: 'The jobs, therefore, get
themselves done after some fashion always-or the group simply is
no more.'H On the face of it this looks like an important statement
of fact. Let us test this by postulating a group in which the job of
dispute settlement is not being done, yet the group seems to continue
to exist. Is such a situation even conceivable? The answer to the
 LAW IN OUR SOCIETY I8I

latter question depends, in first instance, on how the terms 'group•

and 'dispute settlement' are being used in this context. In ordinary
usage it is meaningful to say: 'This group is riddled with conflict,
but it continues to function'; but it is also meaningful to say: 'They
are so riddled with conflict that they no longer deserve to be called
a "group".' This is because in ordinary usage the idea of a 'group'
implies harmony or cooperation, i.e. a non-conflict relationship. 45
It is possible for individuals to dispute about A, while being in
harmony about B and C, but it is paradoxical to say that people
are both in harmony and in conflict about the same matter at the
same time. In ordinary usage 'group', 'conflict', 'dispute' and
'harmony' are vague terms. Llewellyn made no serious attempt to
define them precisely in the context of the law-jobs theory. Accord-
ingly he failed to give clear answers to such questions as: under what
circumstances would it be true to say that a group no longer exists?
When exactly can it be said that a dispute has arisen or has been
settled? And so on. The result is that there is an unresolved doubt
about such statements as 'the jobs get done after some fashion always
-or the group simply is no more.' They can equally well be treated
as tautologous or else as exceedingly vague statements of fact. Some-
one who wished to prove or disprove the law-jobs theory empirically
would need first of all to restate it in precise, non-tautological terms.
How damaging is the conclusion that the law-jobs theory is both
vague and contains an element of tautology? This depends on the
purposes it is made to serve. When Llewellyn challenged his students
to 'test' his theory, he may inadvertently have misled them as to its
nature, but it is probable that many of them nonetheless found it
illuminating to analyse groups of their acquaintance in terms of
how the law-jobs were done. For this purpose the vagueness of
such terms as 'group' and 'dispute' was not a grave handicap.
Similarly the theory has been found to be useful in the initial stages
of the Chicago Arbitration Project, which was explicitly concerned
with the law-government of commercial groups and especially with
the various modes of dispute-settlement resorted to by them.48
Llewellyn's terms are by no means useless because they are vague.
'Dispute settlement', for instance, is a most useful characterization.
The study of judicial processes would have benefited a great deal if
courts had been more regularly seen as just one type of dispute settle-
ment mechanism, and if jurists had more readily tried to see courts
from the broad perspective of the total picture of dispute settlement
182 KARL LLEWELLYN AND THE REALIST MOVEMENT

mechanisms in society. It is suggested that the law-jobs theory is best

treated as providing a rough but useful tool for functional analysis.
In this view, the list of six law-jobs can be treated as a crude check-
list of questions to ask when examining the structure and operation
of any human group: how are conflicts handled within the group?
How is behaviour channelled so as to avoid conflict? How is author-
ity to make decisions allocated? What procedures have to be
followed in authoritative decision-making? And so on. By develop-
ing a set of concepts which could be applied to any human group,
Llewellyn claimed to have provided a means of exploring the
similarities and the differences between 'primitive' and modem
industrialized societies, between the world community and smaller
societies and between sub-groups within a major group ('the
Entirety') or between the major group and some sub-group within
it.u This claim surely deserves attention, for, if it is at all justified,
it establishes Llewellyn's theory as one of major significance. In the
form in which he left it, the theory was admittedly a crude one, in
need of considerable refinement. It is particularly unfortunate that
Llewellyn should have died when he was just about to redirect his
attention to this subject.
It is not necessary at this point to comment in detail on each of
the six principal law-jobs. Four of them receive extended treatment
elsewhere in the present work. 48 Thus the first job, dispute-
settlement, has been considered in connection with The Cheyenne
W ay/ 9 and will be further explored in the chapter on The Common
Law Tradition; the Theory of Rules is concerned with the uses and
limitations of one of the most important devices for performing the
second job of preventing disputes from arising, 50 the problem of
adjustment to change constitutes one of the central themes of
Llewellyn's work and the subject of juristic method is developed in
the Theory of Crafts, which is considered below. 51 The remaining
two jobs, the allocation of authority and the provision of incentives,
were not topics on which Llewellyn had much to say. 52 However, it
may be worth making a few general points here.
First, the list of six law-jobs was not meant to be exhaustive. In a
supplement to Law in Our Society Llewellyn dealt rather perfunc-
torily with others, viz: defence, continuation of the law-government
regime and a general residuary 'catch-all', which made allowance
for the whole conspectus of differing opinions about the 'proper'
role of government. 58 The six jobs selected for special attention
 LAW IN OUR SOCIETY I83

were merely put forward as a rough characterization of what he

considered to be the basic recurrent needs for the survival and
operation of human groups.
Secondly, by emphasizing that the institution of law-government
is not the only device for doing the law-jobs, Llewellyn provides a
useful reminder that there are other devices which assist in perform-
ing the same functions. Writers on law sometimes seem to forget that
courts are not the only, nor are they necessarily the most important,
dispute-settlement mechanisms in society; similarly it is useful to be
reminded from time to time that legal rules are only one of a number
of types of device that can be used for channelling conduct and
expectations. Whole areas of enquiry are suggested by this kind of
approach. In what circumstances do disputants choose to resort to
the courts rather than to some other type of mechanism? What
percentage of accidents of type X ever reach the courts? To what
extent are the results of disputes settled 'out of court' in conformity
with established legal doctrine, in so far as this is clear? In respect of
some particular example of 'law reform', to what extent did the
legislators envisage a change in the legal rules as being in itself
sufficient to produce a change in the relevant patterns of behaviour?
To what extent did they explore the whole range of possible devices
for channelling or rechannelling this type of conduct?
The law-jobs theory, by going back to fundamentals, forces
one to see each specialized device or institution in the context of the
total picture of the performance of certain basic functions. When
this perspective is adopted an almost endless variety of questions is
suggested.G• Some of these questions may be familiar, but others
will prove to be new or relatively neglected. One value of the law-
jobs theory is that it makes such questions seem obvious and natural.
In summing up, Llewellyn gave credit to Max Weber for the
basic insight:
The jobs to be done are jobs to be done; modem complexity of institution
serves merely to highlight processes which require to be gone through, in
some fashion, in any group. The jobs, therefore, get themselves done after some
fashion always - or the group simply is no more. Hence if the officially
announced imperatives fail to put themselves over, one must look elsewhere
for the doing of the jobs.••• Hence to see a Legal regulation which is not
working is promptly to face a problem of further inquiry: what is working?
and how? 11
Finally, it is worth noting that Llewellyn saw the law-jobs theory
184 KARL LLEWELLYN AND THE REALIST MOVEMENT

as providing an intellectual framework sufficiently broad and flex-

ible to accommodate most 'schools' of jurisprudence. In lecture nine
of Law in Our Society he explicitly linked his consideration of the
various 'traditional approaches' to the law-jobs theory:
q (i) an institution has jobs to do, and therefore needs a technical structure,
and (ii) the technical structure is never in itself fully equal to the jobs, but
can nevertheless get complex enough to raise a special set of problems in
itself, and if, also, (iii) ways of the handling of the technical machinery are
also things to worry over, then it follows that
'(a) some thinkers will (and should) be concerned about what the jobs and
ultimate goals are, and about how you can be sure about that;
(b) some thinkers will (and should) be worrying about finding or making
orderly and meaningful shape in or with the technical structure;
(c) some thinkers will (and should) be attempting to judge measures
against goals, in terms (i) of the factual results and (i.i) of the particular
values which are dear to those particular thinkers;
(d) some thinkers will (and should) be concentrating on the engineering
aspects of the machinery, and their improvement simply as such.
(e) some thinkers will (and should) be worrying about general theory,
or perfect theory, in the realm of 'testable' truth, with, conceivably, little or
no direct interest in 'applied' or practical work.
The various traditional approaches in Jurisprudence vary primarily in
regard to which of such lines each stresses, and in regard to how the one
or more lines stressed are gone about. Each approach (i) offers solid values;
(ii) needs help from others; and (iii) can (if corrective balancing is lacking)
mislead into exaggeration, even into flat error. No jurisprude with a single
dominant line of approach is to be trusted in his denials or his attacks. G1
This passage provides a convenient framework for considering other
aspects of Llewellyn's 'whole view'. The ensuing sections deal with
his ideas on what he termed the Good (justice and natural law), the
True (empiricism and 'the scientific analogy') and the Beautiful
(legal aesthetics). Then two 'theories' are considered which relate
directly to the law-jobs: 'The Theory of Crafts' is essentially an
elaboration of the idea of juristic method. Rules are the most import-
ant instrument for performing the law-jobs and 'the Theory of
Rules' brings together Llewellyn's ideas about their nature and func-
tion and related matters. These help to give a rounded picture of
Llewellyn's general position, but for the most part they constitute
some of the less developed aspects of his thought. Accordingly they
will be dealt with rather more cursorily than the 'law-jobs theory'.
 LAW IN OUR SOCIETY 185
JUSTICE AND NATURAL LAW
The problem of justice is to the jurist what Mont Blanc is to the
mountaineer: a challenge faced by many, but mastered by few.
Law in Our Society contains Llewellyn's most sustained attempt to
face the challenge.17 The relevant section, although it is in note
form, is at least as clear and is much more detailed than his longest
published discussion of the subject. It is helpful for the light it
throws on Llewellyn, but few are likely to regard it as a particularly
remarkable contribution to a much discussed topic.
Llewellyn distinguished three 'levels of discussion' of justice: (i)
'ultimate justice', concerned with questions about fairness and the
good life outside the context of any particular group; (ii) 'legislative
social justice', concerned both with the furthering of the goals of a
particular group and with questions of general distribution of
objects of desire within the group; (iii) 'justice under existing law',
concerned with the evaluation of results in particular cases of
'claim, grievance, dispute, [or] offense'. 18 In his view, an important
first step in any disucssion of justice was to identify the appropriate
level of discussion.
Llewellyn himself tended to deal rather cursorily with questions
on the first level, as being in the realm of 'non-testable truth', not
susceptible to proof. 19 They belonged to the realms of faith, charac-
terized by Holmes as 'can't-helps'. 60 He concentrated on the second
and third levels and, for the most part, his approach was empirical
in that his main concern was to identify the principal stimuli that
lead men within groups to react in terms of justice and injustice.
This approach, although worked out independently, has close
affinities with that of Edmond Cahn61 and F. R. Bienenfeld.62
Indeed, Bienenfeld's analysis of 'Justice in the Nursery' was taken as
the starting-point for discussion of problems of justice in Llewellyn's
course. Bienenfeld, building on the work of Piaget and Freud, begins
by analysing typical demands made in the name of justice by young
children in familiar nursery situations. He shows in simple terms that
a number of values are regularly invoked in such situations-notably
equality, desert, need, status and liberty-and that often a choice
has to be made between competing values. 68 For instance, simple
equality demands that the last remaining cake should go to child A,
but child B is hungry and so his need is greater. Cahn, in The Sense
of Injustice, uses a similar approach in his attempt to discover 'how
186 KARL LLEWELLYN AND THE REALIST MOVEMENT

justice arises' and 'its biologic purpose' by treating the sense of in-
justice as an empirical phenomenon and analysing typical human
reactions to situations typically regarded as unjust.
It has been pointed out that empirical enquiries of the kind
envisaged by Bienenfeld and Cahn have so far yielded little beyond
vague generalities and that there are important unresolved metho-
dological difficulties about investigating 'the bottomless pit' of
individual reactions to possible 'justice situations'. 8• It is arguable
that such difficulties are not insurmountable and that empirical
research along these lines, while unlikely to resolve all problems of
'justice', might be revealing; nevertheless it is fair to say that neither
Cahn nor Bienenfeld nor Llewellyn himself seems to have devoted
much attention to these difficulties. Moreover, none of them actually
pursued extensive research of the kind contemplated; rather they
used simple examples of a familiar kind to illustrate some of the
main values' associated with the concept of 'justice'. My own experi-
ence has been that Bienenfeld's 'Justice in the Nursery' is a useful
teaching device for introducing some of the main themes to be ex-
plored in a discussion of justice, but that his analysis is of limited
value thereafter. Similarly, Llewellyn's treatment is quite helpful as
a preliminary exploration of the subject, but it is neither sufficiently
sustained nor sufficiently precise to add much to philosophers'
discussions of the topic.
As an ethical relativist Llewellyn maintained that 'every man of
conscience must hold his own perceptions of Justice to be the basic
ones'. 8D In analysing his own concept of social justice, he took as
his starting-point four attributes:

First, it is an aspect of the Good, Second, it has to do with conflict between

people and with removing or avoiding or regulating that conflict. Third, it
is heavily affected by the idea offaimess, and again by that phase offaimess
which we speak of as even-handedness. Fourth, it operates under the sad
fact of scarcity; in result, there will not be enough of it to go round, and
'solution' will be driven into preferring some to others, or into compromise. 11

Llewellyn's personal values in this context were fairly straight-

forward, if not very precisely defined. Without committing himself
to a fixed hierarchy of values, he claimed to give a high priority to
four values: tolerance, basic minimum respect for human dignity,
'decent attention to need as well as merit', and 'a fair hearing
before a fair tribunal'. He was far from being a dogmatic egalitarian,
 LAW IN OUR SOCIET"i' 187
maintaining that equality was the residual value, which ought to
operate unless inequality could be justified in terms of some other
value such as merit or the needs of the whole group. 67
Llewellyn's views on natural law may be considered briefly at
this point. Lecture nine of Law in Our Society contains a lengthy
discussion of natural law and reveals Llewellyn to be basically sym-
pathetic, but cautious, in his approach to natural law philo-
sophers.68 Briefly, he sympathized with the concerns that motivated
the quest for ideals, approved of the use of right reason, but rejected
some of the claims commonly associated with theories of natural law.
In particular he rejected three propositions: (a} that law as it is
cannot be distinguished from law as it ought to be;69 (b) that there
are universal moral principles that are applicable to all people at
all times and in all places; 70 and (c) that moral principles are
susceptible of proof and do not rest ultimately on faith. 71
Rather, Llewellyn believed (a) that it is both possible and desir-
able to talk of bad law and to distinguish law as it is from law as it
ought to be; 72 (b) that clear guidance can only be obtained from
moral principles that have been worked out in detail in the context
of a particular society ('Guidance for a particular society must plant
its feet in that society'); 71 and (c) that ultimate values belong to the
realm of faith and are not susceptible of proof. 74 The method of
reason can, and should, be used to work out the implications of
premises for particular situations, but 'first principles are in the
realm of non-testable truth'. 78 Thus Llewellyn sought to reconcile
his position as ethical relativist with his sympathy for natural law.
It is pertinent in this regard to note that he selected out for particular
praise in writings on natural law the detailed work of Geny and
Jerome Michael, 711 rather than abstract philosophical discussions
of natural law principles. What he particularly admired was the
method of analysis they employed in attacking specific legal
problems.
Llewellyn also insisted that there was no necessary incompatib-
ility between natural law and legal realism:
Each sees the positive rules and concepts of here and now as present and
potent. Each regards them as requiring re-examination in terms of their
effective going value. Each sees one major guide to their evaluation in the
service which they prove on examination either to render or not to render
to the society which brought them forth. Each labors for the utilization of
the greater leeways afforded by legislation, and the lesser leeways afforded
188 KARL LLEWELLYN AND THE REALIST MOVEMENT

by that case-law system which is built out of the rulings of a nation, to pro-
duce a finer and more effective set of guides for conduct and for judging
And it is difficult for me to conceive of the ultimate legal ideals of any of the
writers who have been called realists in terms which do not resemble amaz-
ingly the type and even the content of the principles of a philosopher's
Natural Law. 77
Finally, it is worth noting that although Llewellyn always
remained sceptical of claims to universality in the sphere of morals,
he was towards the end of his life essentially optimistic about find-
ing common ground between seemingly irreconcilable ideologies
and, over time, of broadening the scope of a worldwide ideological
consensus. 78

LLEWELLYN AND LEGAL SCIENCE

If jurisprudence of necessity includes a study of ideals for law, then realism
is not [co-extensive with] jurisprudence. If, as I think, jurisprudence
contains a dozen sub-disciplines, then realism deals with two out of the
dozen: craft techniques and descriptive sociology.... Either and both are
compatible with any philosophy about law's proper or immediate goals or
about those of men in society. Realism in law is thus as ethically neutral as
the science of mechanics or the art of bridge-building. 11
Llewellyn's early association with Cook, Oliphant and Moore gave
him some insight into the movement for an empirical science of law,
but his strong professional orientation divided him from the more
enthusiastic 'scientists' and he never felt at ease with quantitative
methods. His own natural tendency was towards intuitive and
common-sense 'realism' rather than to 'scientific' research, but he
was clearly troubled by the problems of 'the scientific analogy' and
he treated it at length in several substantial articles, as well as in
numerous shorter published and unpublished writings. 80
Unfortunately, as a group these cannot be said to be among the
most orderly or the most rigorous of his works. In nearly every case
he was responding to an outside stimulus, an invitation to address a
conference, a book sent for review, or plans for some specific project.
As a result, disconnected points and flat expressions of opinion out-
number closely reasoned argument. For the most part they define
rather than justify a position. One paper entitled 'The Theory of
Legal "Science" ' 81 stands out. Initially a review of Law and the
Social Sciences by Huntington Cairns, it contains one of the best
 LAW IN OUR SOCIETY 189
discussions of the subject in print. It is notable not so much as an
original philosophical contribution but rather for its basic sanity
and balance. It is not well-known, no doubt because it was published
in a rather obscure journal. From this particular article, supple-
mented by passages from other works, it is possible to extract a
reasonably coherent, if not fully argued, collection of views on some
of the rnajor theoretical and practical issues surrounding the
development of an empirical science of law.

(i) The place of empirical description in legal theory: Llewellyn, as

we have seen, treated legal theory as covering a number of inter-
dependent sub-disciplines which could be roughly divided into legal
philosophy, legal science and legal prudence or into a larger number
of subdivisions. Thus legal science is only part of legal theory. To
assert the value and relevance of empirical description does not
necessarily involve a denial of the value of any other activity, such as
clarification of goals or analysis of legal concepts. Furthermore, a
search for relative objectivity in description should not be confused
with indifference to questions of value or with 'positivism' in the
sense of a belief that value judgments are 'meaningless' or non-
sensical. And, as is indicated by the passage quoted above, Llewellyn
considered that realism was concerned with both 'science' and
'prudence', but not with all aspects of legal theory.

(ii) The focus of attention:

• • • it is behavior which must be the subject matter of an observational
science, of objective character about things legal. Not rules of law, nor
norms, nor yet imperatives, saoe as these flow from, or are reflected in, or
operate upon, behavior, plus the checked urges, and the patterns of thought
and of held ideal, which are properly included in that term. ••
This . statement too is susceptible to misinterpretation unless it
is takeri with the caveat that legal science, in this context, is only
one of a number of possible approaches to law. It should not be
taken to imply that expositions of doctrine or analytical juris-
prudence, in which rules and concepts are the centre of atten-
tion, are in some sense invalid or wrong. Llewellyn did take the
view that this form of inquiry had been given a disproportionate
amount of attention relative to the amount accorded to legal science.
Moreover, in his general theory, he emphasized the dangers of con-
sidering rules and concepts divorced from their purposes and the
190 KARL LLEWELLYN AND THE REALIST MOVEMENT

contexts of their operation. This is quite different from denigrating

exposition and analysis of doctrine.
With human behaviour at the centre of attention, legal science
can genuinely be claimed as one of the 'behavioural sciences' for
'the behavior side of matters legal is the same behavior which is
susceptible of analysis also by a psychologist, an economist, or a
sociologist'. sa This provides a useful basis for linking law with
other disciplines. If the principal functions of law are seen to con-
cern the channelling of behaviour of officials and laymen, a basis
for functional analysis is also provided. And Llewellyn agreed
with Cairns in emphasizing that 'to make behavior in the legal
aspects of life the subject-matter of a "science" is to overcome the
obsession that only the State can have significance in this connection,
and so to open up the closely comparable phenomena of primitive
law in primitive society, and of sub-group "by-law" within our own
society, for the revealing light they shed on legal phenomena in
general.' 8'
It would be a mistake to seek for much precision in the concept of
'human behaviour' in this context. It is used to indicate a broad area
of attention rather than to provide a precise demarcation of boun-
daries. A considerable variety of kinds of enquiry could be accom-
modated within Llewellyn's conception of legal science. Nor should
the use of the term be taken as involving commitment to some
particular 'school' or '-ism'-such as behaviourism in psychology or
functionalism in sociology or anthropology. 85 Llewellyn had views
on what kinds of research would be likely to be fruitful and on the
values and limitations of various schools and trends in the social
sciences; but these views were not simple deductions from a precisely
defined set of theoretical concepts. On the whole his attitude was
open minded and flexible on such issues.

(iii) The analogy with the natural sciences: values and dangers:
Llewellyn took a similar common-sense position on the vexed
question: Can there be any really 'scientific' knowledge about
human behaviour? In his discussions of the work of Cairns and of
Michael and Adler he was prepared, as a matter of faith, to accept
the possibility that knowledge in the social sciences could satisfy
the standards of reliability and generality set by the physical
sciences. 88 But he was at pains to stress that the social sciences, and
above all the science of law, were for the most part hundreds of
 LAW IN OUR SOCIETY 191

years behind the physical sciences; in his words, they were at the
'pre-pre-science' stage.87 In their impressive critique of criminology,
Crime, Law and Social Science, Michael and Adler had concluded
that while empirical scientific research in criminology was both poss-
ible and desirable there was as yet no scientific knowledge in the
field. 88 Llewellyn took issue with them for their 'Himalayan'
standards of what was workable in criminological research and for
not making sufficient allowance for gradations in reliability. 89 In
his discussion of Cairns' Law and the Social Sciences he reverted
to the theme:
But when Michael and Adler divided knowledge into two essential cate-
gories: 'common sense' and 'scientific knowledge', they overlooked (and
Cairns does not sufficiently stress) that the matter does not thus cleave
neatly into two significant areas, but that it stretches out or sprawls instead
between two poles. At the one pole is ignorance and pure guess. At the other
pole is solid and thoroughly systematized scientific knowledge. 'Common
sense' is, so to speak, in the South Temperate Zone. Uncommon sense,
ordered, pondered on with care, and tested out once, and again, and yet
again, in inconclusive but still illuminating corrective careful tests - that is
so to speak, in the North Temperate Zone. Knowledge does not have to be
scientific, in order to be on the way toward Science. Neither does it have to
be scientific in order to be extremely useful. It is time that social 'scientists'
should recognize this openly; it would save much confusion, and it would
save more waste motion. What we need is knowledge moving carefully and
cannily toward the scientific pole, accompanied by some rough indication
of its present latitude. That is the scientific road toward Science. And progress
on that road is valuable step by step.
Knowledge, I repeat, does not have to be scientific, i11 order to be useful
and important.•o
This passage provides some important clues to Llewellyn's reser-
vations about 'the scientific analogy' and to some of his differences
with dedicated 'Scientists' like Moore and Cook. Llewellyn saw
several related dangers in stressing the analogy: it encouraged the
hypercritical tendency that had been exhibited by Michael and
Adler with their 'Himalayan' standards; the snobbery of 'scientism'
might tempt some to select for study relatively trivial topics, merely
because they are susceptible to quantification, which looks scientific.
Even worse, matters not yet susceptible to reliable quantification
might be dressed up 'in shoddy pseudo-quantitative form ...
producing a type of garbage which has peculiarly affected the third-
rate run of work in sociology' .111
192 KARL LLEWELLYN AND THE REALIST MOVEMENT

Finally, a less harmful form of snobbery is the tendency to debase

the coinage of the emotively respectable word 'science' by applying
it to studies which fall far short of the high standards of rigour and
generality set by natural sciences. 92
Llewellyn's reservations about 'the scientific analogy' did not
blind him to its virtues. Above all it set a standard to aim for in the
long run:
The minimum, as I see it, goes to the data being both objectively verifiable,
without recoune to personal intuition or to revelation; and to those data
being also verified; and to the range of the resulting inaccuracy being
established with high probability, as a part of the 'data'; and, finally, to
verifiable relations being established in communicable and freshly testable
form. And if that is the minimum for Science in the field, then I repeat that
I see no prospect of having much of it in my life-time. 88

There were further virtues in the 'scientific analogy':

The utter need of the clear hypothesis. Add: insistent attempt at objective
observation; sustained objective recording of the data observed; cumulation
and comparison, consistent cumulation and ordered comparison of observations,
with attention concentrated on any seeming discrepancies. That is what leads to
sharper and more critical hypothesis. Add: patience. If it took our friends in
Physics these few hundred years to get to where their original rather simple
(simple-minded, if you will) working premises- 'force', 'causation', and the
like - needed to be refined; and, indeed to get to where an ordered grasp of
ultimate bases of the whole began to seem even in the possible offing - then
maybe our not so simple material may take us more than a minute or two,
to master. Or again: we can learn from natural science that Big Things in the
punuit of science are not commonly achieved by going after Big Things.
They come, vastly more, out of sustained, insistent, cumulative digging
after smaller bits of testable and tested knowledge about small things; and
out of concentrated study - including speculation - on matters little enough
to be studied closely.
And there is a final thing to learn, along with the value of the constantly
sharpening hypothesis. That is, the additional need, from time to time, of
some workers who just take a fresh look, and repose whole lines of work and
interpretation. •'
These two passages give some indication of Llewellyn's approach to
possible strategies for developing an empirical science of law. On the
whole he favoured an evolutionary, unprogrammatic approach. At
base was a scepticism of the value of 'using seven-place logarithms
to work out the rough carpentry of a building whose parts are
 LAW IN OUR SOCIETY 193
being measured by thumb-joints-a different man's thumb-joint
for each measurement•.ea He favoured advance on a broad front,
mainly through hundreds of modest projects.98 He was inclined to
be sceptical of ambitious and expensive macro-projects, but he
recognized that some, like the Chicago Jury Project, might have a
special value, particularly in respect of developing theory and basic
techniques. A formidable obstacle to progress was shortage of man-
power. He differed sharply from those lawyers who maintain that
socio-legal work should be left entirely to the social scientists:
••• the law men must in the main train themselves as social scientists; they
cannot borrow enough help from outside; the methods from outside need
reworking from legal data; the data from outside are not collected, and will
not be, with an eye to legal needs; not enough social scientists can be lifted
bodily into law; and only legal training can, in the main, provide the requi-
site background for weighing factor on the judgment-side, and for spotting
things overlooked. 8 7
To attract enough people into this kind of work, there were
some difficult obstacles to be overcome. Not only would lawyers have
to be made more sharply aware of the needs and of the relevance of
this kind of work, but they would need training, not least to give
them confidence. Further, they would need incentives in the form
of a better market for their services and more recognition than they
were accorded in American law schools even as late as the mid-
1950s.es

(iv) Llewellyn in the field: In respect of socio-legal research

Llewellyn was more of a staff officer than a foot soldier. Neither by
temperament nor by training was he suited to the systematic collec-
tion of data. He knew that he was incurably innumerate and was
mildly worried by the knowledge. 99 Typically he wrote almost
entirely from his head; even the ordinary spadework of combing the
law reports for relevant authorities did not come naturally to him
although he often disciplined himself to do it; he was not method-
ical enough to be a good field worker, although his 'artistic'
qualities sometimes produced spectacular results. He broke most of
the rules of empirical method-not for him the carefully constructed
research design, rigorous sampling techniques or the scrupulously
tested questionnaire. He spent little or no time in the field for his
principal works. He stayed only ten days among the Cheyennes; the
rest of the collection of material for The Cheyenne Way was done
194 KARL LLEWELLYN AND THE REALIST MOVEMENT

by Hoebel. Both Cases and Materials on the Law of Sales and

Praejudizienrecht und Rechtsprechung in Amerika were library
based. The Uniform Commercial Code and The Common Law
Tradition were planned and executed with little concern for social
science techniques. 10° For only one major project, the study of the
Pueblo Indians, did Llewellyn do a considerable amount of field
work; instead of remaining a detached observer, he became
emotionally and actively involved in Pueblo affairs; it is perhaps not
a coincidence that this project was never completed. 101
Llewellyn's first serious attempt at empirical research revealed
some of his limitations as a field worker. Stimulated in part by the
Columbia curriculum discussions on familial relations,102 in part
by the work of Jacobs and Angell which arose out of those discus-
sions,108 and in part, it has been suggested, by his own unhappy
experiences surrounding the termination of his first marriage,
Llewellyn set out to study divorce proceedings in New York. 10 ~
His original concern was to explore the actual effects of rules of law
in a particular area, as an example of the kind of work he had been
advocating. However, instead of confining himself to testing rigor-
ously and in detail some precisely formulated hypotheses, Llewellyn
ended up with a general disquisition on marriage and divorce, a
pot-pourri of general theory, statistical data and personal impres-
sions. He spent some time 'observing' divorce proceedings and, with
assistance, he attempted, rather half-heartedly it seems, a statistical
analysis of some court records. But his speculative propensities
spilled over, and in the end he made no orderly presentation of his
findings. Under the heading of 'Method' he wrote in a footnote:
Nothing in the paper purports to have any guaranty more trustworthy than
common sense and personal observation. Sample drillings into available
data are offered in the footnotes. In one case only (the quantitative effects of
the lawmen's work in non-support prosecutions ... ) did the available check-
up seem to me to require modification of the views resting on personal
observation and prior reading- i.e. on so-called insight. That of course
affords no proof even of the views checked up, still less of the others. It does
justify their subm.ission.lo&
The outcome of this project was not a report of findings but a some-
what bizarre essay entitled 'Behind the Law of Divorce'. Two parts
were published, a third part survives unfinished in manuscript. The
article provoked some interesting reactions. Young B. Smith read it
in draft. He was uncompromisingly damning of both substance and
 LAW IN OUR SOCIETY I95
style and advised Llewellyn to suppress it.106 On the other hand the
sociologist Robert Angell was more polite, although he agreed with
Smith's criticism of the style. He thought that Llewellyn's analysis
of the functions of marriage was too vague, but that there was much
that was novel and suggestive in what he had written/ 07 Thurman
Arnold wrote in a friendly letter that there were too many ideas
and too much of the poet in the article, which reminded him of
Sartor Resartus. 108 Other letters suggest a consensus: some sugges-
tive ideas, but poorly ordered and too lyrically expressed. This seems
to be a fair assessment. The divorce study was Llewellyn's sole
attempt to imitate the 'scientists' during the years of the Columbia
experiment. For the rest of the period he remained comfortably
indoors, to the relief and benefit of nearly everyone.
If Llewellyn's own attempts at field work were not strikingly
successful, the same could not be said of his interventions in other
people's projects, particularly at the planning stage. Jerome Hall,
E. Adamson Hoebel and Paul Tappan are among those who
produced notable works as graduate students under his super-
vision.109 His advice was sought by those responsible for some of
the most successful socio-legal projects of the I930s, including
Charles Clark's studies of judicial administration in Connecticut
and a number of bar surveys.110 There are indications that he made
a not insignificant contribution to those projects. But by and large
the nature of this contribution remains constant: as a stimulator and
as a sounding board he was unrivalled; for system and rigorous
method even his acolytes had to look elsewhere. 111

Conclusion. Four main factors interacted in Llewellyn's approach

to legal science: his ideas about realism and about the social sciences
generally; his recognition of some of the practical obstacles to the
undertakin g of systematic empirical research into law on a large
scale; the personal qualities which he brought to such work himself;
and the habits and attitude fostered by the case-law tradition in
which he was nurtured. His general position may be briefly summar-
ized as follows: he was willing to accept that ultimately it is conceiv-
able that empirical research in the social sciences could satisfy
similar criteria of objectivity to those of natural science, but that
only the most elementary beginnings had been made in that direc-
tion; second, that 'objectivity' is a matter of degree and that even
casual impressionistic observation is better than complete ignorance,
196 KARL LLEWELLYN AND THE REALIST MOVEMENT

provided that it is recognized for what it is; thirdly, that stress on

the scientific analogy may be dangerous in that either the coinage
of the term 'scientific' may be debased or, worse, that would-be
scientists will consider as worthy of study only topics which are as
yet susceptible to rigorous quantification, a narrow and often
infertile area. In short, he favoured a common-sense strategy for
research, based on a realistic appraisal of the obstacles in the way
of quick advance, such as the cost, the lack of glamour in much of
the work, and the shortage of personnel with appropriate training.
Finally, one may infer from his behaviour, as well as from his
articulated views, that he would have strenuously disagreed with any
suggestion that in the search for understanding of the legal process
there was no room for intuition and imagination. The half-way
artist had as important a role to play as the fact-grubber.
We may conclude that for the most part Llewellyn showed both
perception and balance in his general attitude to legal science,
especially in view of the state of the social sciences at the time he
formulated his position. He was not especially worried by the basic
theoretical issues underlying discussions of an empirical legal science
and to a philosopher his position may seem rather vague and simp-
listic. Rather, his was a pragmatic and sensible approach which
could form the basis for a rounded strategy for developing the sub-
ject, giving due regard both to the importance of theory and
to likely practical difficulties. Apart from the fact that Llewellyn
hinted at rather than articulated such a strategy, one major correc-
tive to his views is needed. He does not seem to have grasped fully,
in terms of needs and priorities for money and manpower, the
implications of the view that an empirical science of law could satisfy
standards equivalent to those prevailing in the natural sciences,
but that it was as yet at a pre-Newtonian stage of development.
The strongly emotional tone of his critique of the 'scientists' in 1956
suggests that he was perhaps too close to events and had too big a
personal stake in other activities to face up to some of the more un-
comfortable issues of the relationship between professional training
and socio-legal research and possible competing priorities in respect
of them. In the outcome his plans for furthering legal science seem
rather complacent and unambitious in relation to the possibilities
and the needs.
 LAW IN OUR SOCIETY I97

LEGAL AESTHETICS 112

According to the legal apocrypha Karl Llewellyn was originally
seduced by the N.I.L., but once he had recognized the beauty of
the letter of credit, this became his true love. It is not hard to pin-
point the source of this myth, for Llewellyn was well known for his
propensity to use terms like 'lovely' and 'beautiful' in contexts where
others would express their admiration more prosaically. However,
his concern with beauty in law went beyond such rhapsodical use of
language, for with apparent seriousness he expounded a theory of
legal aesthetics.
By 'beauty' in this context Llewellyn meant fitness for purpose-
the functional 'beauty of dam-race and turbine' .118 The deftness of
Cheyenne juristic techniques, 'the rule of the singing reason', the
c.i.f. contract, the letter of credit and the Grand Style of judging are
all satisfying for the same reason, that they are functionally apt.
This kind of 'beauty' is to be contrasted with the ideal of 'structured
beauty'-the elegantia of a neat, orderly, logically consistent
system.U'
The great monument to this esthetic ideal is the German Civil Code, read
not as it stands on the page, merely, but read also against the rigorous,
almost rigid German theories of construction and dogmatics which were in
vogue for a decade after its adoption. It is a type of legal esthetics little
practised among us.ua
Llewellyn suggested that Langdell's analysis of consideration and
unilateral contract was the best-known American example: 'Noth-
ing could be more simply stated, more rigorously thought, more
tightly integrated, more fascinatingly absurd to teach, more easy to
"apply" .' 116 He contrasted the attractions of Langdell's theory
with those of the c.i.f. contract:
Another example is the law of the c.i.f. contract, which Lord Wright has
recently held up to admiration as perhaps the most 'elegant' of our legal
institutions. It is in my mind- though I may be unjust to Wright's shrewd
juristic insight- that what stirs his praise is the logical clarity, the singleness,
the sharpness of line, in the law governing this once standard contract for
overseas commerce. The patterned succession of the seller's proper actions,
as he arranges, as he ships, as he sends forward promptly the batch of docu-
ments; the neatly matched mortising of the due steps by the buyer,
honoring the draft when the documents are presented, then paying the
freight in cash before outturn of the merchandise, proceeding then, and
again promptly, to inspection of the merchandise itself, until which all the
198 KARL LLEWELLYN AND THE REALIST MOVEMENT

built-up seeming rights stand subject to possible defeat; the courtly grace
with which the steps and rights of one intervening banker, or two, or three,
are laid out as in a minuet- this, I say, is what I suspect Wright to have
primarily in mind when he speaks of 'elegance' in the law of this institution.
What concerns me is that the aspects of that elegance are two; that but one
of the two is basic to legal beauty; that that one is utterly basic, while the
other is either an efflux or a tool, and, lacking the one, would be a simula-
crum. It is not the structure, however sweet of logic and of line, that is the
essence. Langdell's construct points that moral: magnificent in conception,
impeccable in workmanship, it yet would not function; men do not, and
courts will not, work according to that pattern. And that, in things of law,
bars beauty. The history of the Langdell conception is one of a delighted
welcome by law-teachers, which continues still, while piece after piece of
the integrated whole continues to be junked; the holes consume the struc-
ture. The c.i.f. construct, on the other hand, has proved in test after test as
surely, as cleanly, as smoothly gauged to the work it had to do as any legal
engine man has yet designed. At. a result, or as a means, a logical clarity is
present, too. But the prime test of its legal beauty remains the functional
test. Structural harmony, structural grandeur, are good to have, they add,
they enrich; but they are subsidiary. So is ornament. Legal esthetics are in
first essence functional esthetics.117

In this Theory of Legal Aesthetics Llewellyn appears to be trying

to do little more than to re-fight the battle of functionalism versus
formalism in terms of analogies drawn from the arts and especially
from architecture. Much of his longest discussion of the Beautiful
in law is taken up with exploring the concept of 'period-style' and
the relative merits of the Grand Style and the Formal Style.118
In this view the 'theory' is essentially a reassertion of the values
underlying a functional approach: law should consistently be
treated as a means to an end; solutions to legal problems, indeed to
all problems arising from the law-jobs, should be judged as 'satisfy-
ing' to the extent that they fit 'sense', 'balance' and stated purpose.
The values of elegantia-clarity, economy, logical consistency-
are secondary values, but they are values none the less: 'The situa-
tion must be rightly grasped, the criterion rightly seen, the effect
neatly devised to purpose, else neither clarity nor economy of langu-
age can serve true beauty.'119 What constitutes 'rightness' in this
context depends upon one's conception of the Good. Indeed the
Theory of Justice (concerning the Good), the Theory of Science
(concerning the True) and the Theory of aesthetics (concerning the
Beautiful) are all part of a single quest :
 LAW IN OUR SOCIETY 199
There can be no test by effect, no working test, no test for functional Beauty,
without inquiry into situation, process, and result in fact. Determination of
the True becomes thus an inherent part of search for the Beautiful. But
again, neither can there be test by effect, without inquiry into purpose
against which to measure that effect, nor can there be such inquiry without
search for the Good. It is a fortunate field to work in, this of law, in which
the three great ultimates so clearly merge. 11 0
Llewellyn gave credit for the inspiration of his lectures on 'the
Good, the Beautiful and the True' to Diogenes Jonathan Swift
Teufeldrockh, the fantastic German philosopher whose works seem
anachronistically to parody Llewellyn's own writings. 121 Perhaps
we should accept the hint and not take the theory of legal aesthetics
too seriously. This need not stop us from concluding that if it is
nonsense, it is quite sensible nonsense.

THE THEORY OF CRAFTS

Out of the conjunction of activities and men around the law-jobs there
arise the crafts of law, and so the craftsmen. Advocacy, counseling, judging,
law-making, administering - these are major groupings of the law-crafts.
But mediation, organization, policing, teaching, scholarship, are others. At
the present juncture, the fresh study of these crafts and of the manner of
their best doing is one of the major needs of jurisprudence. 11 1
Llewellyn's fullest statement of the 'Theory of Crafts' is reproduced
in appendix C; it calls for only a brief comment here. The theory
of the crafts of law is coextensive with the study of juristic method
or legal technology. This includes but is wider than the study of
lawyers' skills , for it encompasses all aspects of the means of getting
the law-jobs done. Tradition, organization, professional ethics, job-
analysis, specialization and training are among the topics that
would need to be covered by a comprehensive theory of legal tech-
nology. Llewellyn felt that this was an important and neglected area
and he devoted much of his attention to it in his later years. How-
ever, his main contributions were to specific phases and he did no
more than sketch the rough outlines of a general theory in Law in
Our Society. 128 The most important of his specific contributions
in this area are considered in other chapters: the study of the
Cheyenne techniques of dispute settlement,12• his various activities
in connection with the teaching of 'legal skills' ,125 the course on
legal argument,128 and The Common Law Tradition, 121 which is
200 KARL LLEWELLYN AND THE REALIST MOVEMENT

for the most part a treatise on a number of related phases of juristic

method.
The rudimentary nature of Llewellyn's theory of era£~ should not
be allowed to obscure its potential significance. It points to broad
areas of neglected enquiry. It is not implausible to suggest that this
negleqt is attributable in large part to the dominance of rule-centred
theories of law. Legal education provides a clear example. In the
common law world, even in the United States, legal education has
concentrated on the study of legal rules and principles. Even so-
called 'practical' examinations have been strongly affected by the
assumption that the principal characteristic of 'the good lawyer' is
to know the law. The result has been that the techniques of such
functions as advocacy, statutory interpretation, drafting, counselling
and negotiation have rarely, at least until recently, been the subject
of systematic study. Practitioners have had to learn in the school
of 'experience' with the help of tradition, instinct and a few rules of
thumb. Lack of systematic study has not only been at the back of
haphazard training, but also helps to explain the slow progress
of legal technology. The sociology of the legal profession as a subject
also continues to hover around the edges of its subject-matter, with-
out getting to the core, for lack of adequate tools of analysis and
description of lawyers' operations. 128
Some people may find Llewellyn's use of words like 'craft', 'crafts-
man', 'craftsmanship' somewhat quaint, carrying associations of a
tradition-bound, individualistic, cottage industry. A Japanese critic
has seized on this analogy to suggest that Llewellyn is the last
prophet of the individualist era 'when justice depended on manual
skill and when a law book could be a piece of romantic poetry'. 1211
If he is right, then ironically the 'Theory of Crafts' points the way
out of the cottage industry tradition towards a more systematic and
up-to-date legal technology.

THE THEO.RY OF RULES

Rules are measures based on ideals, practices, standards or commands,
measures cast into verbal form, authoritative verbal form, with sharp-edged
consequences. They thus add a tremendous power at once of communication,
of rigidification over time, and of flexibility. They are a well-nigh in-
dispensable precondition to any degree of standardization of law-work
across space and the generations. They stand with such relative conspicu·
 LAW IN OUR SOCIETY 201
ousness to observation, they accumulate so easily, they can be gathered so
conveniently, and they are so easy to substitute for either thought or
investigation, that they have drawn the attention of jurisprudes too largely
to themselves: to the rules- as if rules stood and could stand alone. 18 0

Llewellyn discusses rules in various places in Law in Our Society,

but he does not expound a discrete 'Theory of Rules' therein. This
is a little surprising, for not only did he devote a section of The
Common Law Tradition to just such a theory,181 but, even more
significant, during the 1930s he drafted a substantial part of a book,
which he tentatively called The Theory of Rules.m This aspect of
his thought deserves attention because it is one area where the
interests of analytical and sociological jurists coincide. Moreover,
Llewellyn's views on the subject have sometimes been misunderstood
and misrepresented. 1 aa
The manuscript of The Theory of Rules consists of seven almost
complete chapters and a few fragments. The original plan for the
book envisaged a total of nine chapters. The manuscript is in a more
advanced state than that of Law in Our Society, but it adds less to
our understanding of Llewellyn's position because most of it relates
to ideas that he also treated in his published works. Nevertheless it
is of interest as being his most sustained discussion of legal rules
and his only attempt to bring together all his thoughts on the subject
in a single work (the 'theory of rules' in The Common Law Tradi-
tion is mainly concerned with rules in appellate courts). A summary
of Llewellyn's 'Theory of Rules' is to be found in appendix B. This
takes the form of a 'restatement' based not only on the manuscript
book but also on a number of other published and ~npublished
works.
This restatement requires only a brief comment, for it does little
more than reclassify ideas which are discussed elsewhere, especially
in connection with The Common Law Tradition, the law-jobs
theory, and legal science. The relationship of the 'Theory of Rules'
to the 'whole view' is quite straightforward: rules are one of the
main instruments (no more, no less) for performing the law-jobs and
as such they deserve special attention. Improving the quality of legal
rules is one of the most important tasks of juristic method; the Grand
Style offers the preferred model for rules of law- 'the rule with a
singing reason' which at once provides guidance to judges, a reliable
basis for prediction to practitioners and is, as far as is compatible
202 KARL LLEWELLYN AND THE REALIST MOVEMENT

with the other functions, capable of being understood by non-

lawyers.18'
Two other points are worth noting: first, it is important to
distinguish between Llewellyn's statements about rules in general
and his discussion of the functions of rules in appellate decision-
making. Statements of the kind, 'Rules are not to control, but to
guide decision', tu are likely to occasion unnecessary controversy
if they are considered outside the specific context of a discussion of
appellate cases worth appealing. Finally, it is hoped that the restate-
ment of Llewellyn's views will help to kill the misconception that he
believed 'that talk of rules is a myth' 186 or that he denied the
normative character of legal rules181 or that he 'rejected rules as
providing uniformity in law' (whatever that may mean). 118 Rather
it should be apparent that his analysis of the nature and functions
of legal rules is very much in line with some of the standard analyses
current in Anglo-American jurisprudence, even if it does not add
very much to them and is, in some respects, expressed rather
loosely.ta&

CONCLUSION
If novelty is the touchstone of significance in jurisprudence, then
Llewellyn's 'whole view' as set out in Law in Our Society and related
works may not qualify as a legal theory of major significance.
Perhaps he was being too modest about his potential contribution
when in 1931 he suggested that none of the principal ideas associa-
ted with realism were new.uo Only if the most stringent standards
of originality were to be applied would this statement be true of the
law-jobs theory, the theory of crafts, and some of the other ideas
discussed in this chapter. But it is fair to say that in respect of his
more general ideas Llewellyn did not make a sharp break from his
intellectual ancestors. Indeed, in his efforts to develop a theory based
on 'horse sense', originality was far from being his main concern.
His primary objective was to bring jurisprudence down to earth
and to provide a reasonably coherent framework of ideas for 'the
hundred thousand'. It is in terms of this objective that this phase of
his work is most fairly judged. It is perhaps more an indication of an
aloofness in the Anglo-American tradition of jurisprudence than of
Llewellyn's success in attaining his objectives that so far in the
twentieth century he appears to have had few serious competitors
in the enterprise.
10

The Common Law Tradition

INTRODUCTION
Of all Llewellyn's works The Common Law Tradition is the most
fascinating and the most frustrating. It stands to Bramble Bush as a
wise but eccentric elder statesmen to a brilliant young demagogue.
As he reads and re-reads the pages the critic is beset by conflicting
impressions: clear thinking and confused metaphor; candour and
white-wash; erratically balanced; clear-eyed realism and tradition-
struck romanticism; a thesis of classic simplicity elaborated in a
Gothic structure; an impassioned plea for reason and common-
sense; ideas worked over and polished for more than thirty years
presented as a rude elementary analysis. The principal addressee is
the ordinary practitioner, yet the Teutonic thoroughness of the
documentation wearies all but the most patient scholar; empirical
methods, idiosyncratically 'scientific', are used "to verify hypotheses
expressed in terms which look suspiciously metaphysical; a work of
theory on the grand scale is advertised as a do-it-yourself manual for
judges and advocates; the author preaches at greatest length
where he has practised least-only ten pages specifically for the
scholar, nearly one hundred and fifty for the judge. Richly specific
in illustration, insipidly vague in general conclusion. A success and a
disappointment.
Such paradoxes, those which are genuine and those which are
only apparent, complicate the task of analysis and evaluation. They
suggest ambivalence on the part of the author not only in respect
of his conclusions, but also in respect of his aims, especially as to
readership. An author's unresolved dilemma about his audience is
inherited by his critics. If he has sought to please both the Hundred
and the Hundred Thousand, as well as those in between, should his
critics seek to do the same? The Common Law Tradition could easily
204 KARL LLEWELLYN AND THE REALIST MOVEMENT

be the subject of a book-length study. In fact, in addition to numerous

reviews, it has already been the subject of at least one postgraduate
thesis and of a substantial number of articles. 1 Here limitations of
space would preclude any attempt at a 'definitive' treatment, if such
were possible. The present chapter has more modest aims: first, to
provide an introduction and a guide to the potential reader (nearer
to the Thousand than the Hundred Thousand); secondly, to relate
the book to Llewellyn's other work; and thirdly, to make a critical
evaluation, with particular reference to its potential as a starting-
point for further research.
The Common Law Tradition was over thirty years in the making.
According to Llewellyn he began his researches into appellate
judicial deciding in 1927.2 For the next thirty years most of his
academic work and some of his outside interests had some bearing,
direct or indirect, on the end-product. Themes in The Common Law
Tradition are anticipated in his juristic and commercial law writings
of the 1930s, his course on legal argument, The Cheyenne Way,
and several series of lectures. The concept of 'period style' can be
related back directly to his interest in Romanesque and Gothic
cathedrals, which he took up seriously as a hobby in 1931. The
Common Law Tradition represents the last of several attempts to
weave together many loosely related strands of thought about
appellate judicial processes. A book on The Theory of Rules had
been abandoned in the late 1930s; the plan to publish the Storrs
lectures of 1941 on 'The Common Law Tradition' as a book was
quietly dropped, partly because of their muted reception, partly
because of the pressure of work on the code. His detailed work on
specialized topics in commercial law and contract, on particular
courts and individual judges, served as preliminary case studies. Yet
in preparing for The Common Law Tradition itself, Llewellyn felt
it necessary to embark on further extensive detailed studies of
appellate courts in action before he felt ready to treat his researches
as complete.
Thus the book is not only based on many years of thought and
research but it also contains Llewellyn's final statements on a
number of topics; discussion of some of these has been postponed
until this chapter. The result is that some aspects of the book need
to be examined at length. Parts of this chapter may prove to be
unnecessarily detailed for the non-specialist, who may be well
advised to do some judicious skipping. The arrangement is as
 THE COMMON LAW TRADITION 205
follows: first, the central argument is presented in outline; there
follows a detailed analysis of the main concepts used in the argu-
ment, including extensive consideration of Llewellyn's general ideas
on two topics which he treated in a number of works: the concept of
period style and the interpretation of cases and statutes. The descrip-
tive thesis is next examined. In the following section, Llewellyn's
advice to judges, advocates and others (the prescriptive thesis) and
some other possible applications of the ideas in The Common Law
Tradition are discussed. The chapter concludes with a general
appraisal of the work.

THE CENTRAL ARGUMENT

For all the profusion of digressions, asides, appendixes and inter-

stitial observations, the book is built around a discernible central
argument which is quite easily summarized :8 Llewellyn begins with
a dogmatic assertion that there exists within the legal profession in
America a crisis of confidence in the appellate courts.4 The bar
has ceased to believe that results are even moderately predictable,
or as he prefers to say, reckonable. The crisis was provoked by the
destructive effects of developments in logic and psychology on the
comfortable belief in 'legal certainty', a belief which rested partly
on a confusion between the process of deciding and the mode of
justifying a decision and partly on an exaggeration of the part
played by deductive logic in influencing and justifying practical
decisions. Juristic writings of the I92os and 1930s were more success-
ful in spreading disillusion than in aiding reconstruction. From a faith
in certainty there was a swing to a belief that appellate judicial
decisions are irrational and unpredictable. A faith in doctrine as
productive of certainty is misplaced, first because absolute certainty
is an unattainable ideal and secondly because no case merits an
appeal unless a technically good doctrinal argument can be put
forward by each side, and when this is done doctrine alone cannot
decide the matter. In nearly all such cases at least one lawyer is
shown to have been 'wrong' about 'the law'; yet it is not necessarily
discreditable to be counsel for the unsuccessful litigant. The main
purpose of the book is to show that contemporary appellate judicial
deciding in America is to a large extent rational, that law-making
by judges is not limited to the unusual or crucial or borderline or
queer case, but is part of everyday practice, and that such creativity
206 KARL LLEWELLYN AND THE REALIST MOVEMENT

is quite compatible both with reasonable reckonability and with the

demands of justice and the need for adjustment to social change.
For the purposes of analysis the core of The Common Law Tradi-
tion may be conveniently divided into two parts: (i) the descriptive
thesis, concerning how appellate courts actually behave and the
renaissance of the Grand Style; and (ii) the prescriptive thesis, which
consists of Llewellyn's advice to the various categories of participant
associated with appellate decisions. The argument can be broken
down into a series of propositions as follows:

The descriptive thesis

(i) There was in the I950s a serious crisis of confidence, in that
many lawyers (and law students) believed the decisions of American
state appellate courts to be arbitrary and unpredictable.
(ii) The Common Law Tradition demonstrates that the results
of decisions of these courts are predictable ('reasonably reckon-
able'): (a) beyond what it is reasonable to expect of an institution
settling disputes 'self-selected for their toughness' ;3 (b) 'quite suffic-
iently for skilled craftsmen to make usable and valuable judgments
about likelihoods',6 and (c) 'quite sufficiently to render the handling
of an appeal a fitting subject for effective and satisfying craftsman-
ship.'7
(iii) the decisions of American state appellate courts are reason-
ably reckonable despite the fact that: (a) the authoritative sources of
law, especially precedents and statutes, are sufficiently malleable
as to allow considerable leeway for differing interpretations by
appellate courts; (b) American state appellate courts in fact use a
wide range of different techniques in interpreting authoritative
sources of law; and (c) most, but not all, of those techniques are
accepted as legitimate.
(iv) The decisions of American state appellate courts are reason-
ably reckonable because: (a) there are a number of steadying factors
which tend to promote stability and reckonability; in particular (b)
there was in the I 950s a renaissance of the Grand Style of judging
in American state appellate courts; and (c) the Grand Style of judg-
ing tends to promote reckonability.
(v) The Grand Style of judging is not arbitrary, because it involves
overt response in a disciplined manner to situation sense, to reason
and to considerations of justice.
(vi) Conclusion: since the decisions of American state appellate
 THE COMMON LAW TRADITION 207

courts in the 1950s have been demonstrated to be reckonable and

not to be arbitrary, it follows that the crisis of confidence was not
justified.

The prescriptive thesis

(vii) Participants in appellate judicial processes should adopt the
Grand Style.
From this restatement of the central argument of The Common
Law Tradition it can be seen that it is built on an apparatus of
concepts that are not in common use: crisis of confidence, reasonable
reckonability, steadying factors, Grand Style, Formal Style, situa-
tion sense, leeways and techniques of interpretation, and legitimate
precedent techniques. In the course of argument Llewellyn also
resorts to hard worked notions, such as wisdom, justice and reason,
which require elucidation. All of these concepts are examined in the
next section, not only as a preliminary to understanding and
evaluating Llewellyn's main contentions, but also because illumina-
tion is to be gained at least as much from the concepts themselves
as from their particular application in the descriptive thesis.

THE CONCEPTUAL APPARATUS

Reasonable reckonability and the steadying factors
From Holmes' 'Path of the Law', through Frank's Law and the
Modern Mind to modem jurimetric writings American 'realist'
jurists have tended to give the impression that prediction of
judicial decision-making (or its unpredictability) was their central
concern. One of the themes of the present work is that Llewellyn's
concerns were very much wider than this. However, at first sight
the predictability of appellate decisions does appear to be the main
focus of attention in The Common Law Tradition. In this view
it would be correct to say that, whereas Frank's Law and the
Modern Mind was directed to attacking the myth of certainty in
law, Llewellyn's book was directed to attacking the myth of
uncertainty underlying the alleged crisis of confidence. It will be
argued below that Llewellyn sensed but did not clearly spell out the
point that a lawyer's confidence in appellate courts is not solely a
function of the predictability of judicial behaviour, but rests on a
208 KARL LLEWELLYN AND THE REALIST MOVEMENT

number of other factors. However, prediction provides the main

theme of the overture of the book:
You cannot listen to the dirges of lawyers about the death of stare decisi.r
(of the nature of which lovely institution the dirge-chanters have little
inkling) without realizing that one great group at the bar are close to losing
their faith. You cannot listen to the cynicism about the appellate courts that
is stock conversation of the semi- or moderately successful lawyer in his
middle years without realizing that his success transmutes into gall even as
it comes to him. You cannot watch generations of law students assume, two
thirds of them, as of course and despite all your effort, that if the outcome
of an appeal is not foredoomed in logic it therefore is the product of un-
controlled will which is as good as wayward, without realizing that our
machinery for communicating the facts of life about the work of our central and
vital symbol of The Law: the appellate courts, has become frighteningly
deficient.
For the fact is that the work of our appellate courts all over the country
is reckonable. It is reckonable first, and on a relative scale, far beyond what
any sane man has any business expecting from a machinery devoted to
settling disputes self-selected for their toughness. It is reckonable second,
and on an· absolute scale, quite sufficiently for skilled craftsmen to make
usable and valuable judgments about likelihoods, and quite sufficiently to
render the handling of an appeal a fitting subject for effective and satisfying
craftsmanship.
It is in the contrast between these joyous facts and the therefore needless
but truly perilous crisis in confidence that the book takes its start. 8
In discussing prediction Llewellyn preferred the less elegant term
'reckonability' to the more conventional 'certainty' for two reasons:
first, 'certainty' suggests an absolute, whereas the best that could
be hoped for is a reasonable prospect of predicting correctly in
about seven or eight cases out of ten. 9 Secondly, 'certainty' in law is
commonly associated with the idea of 'certain rules', a phrase which
is at best ambiguous in that it is not clear what exactly is being
predicted- the outcome of a particular case, the justification for the
outcome, or something else. Sometimes discussion of legal certainty
is based on the assumption that if a general rule can be stated with
confidence then the results of cases subsumed under that rule can
be predicted with equal confidence. This assumption is in turn based
on the deductive model of judicial decision-making, which was,
of course, rejected by Llewellyn. Sometimes talk of certainty in law
hides the kind of obscurity or confusion that is to be found in such
statements as 'the rule is certain, but its application is doubtful'.
 THE COMMON LAW TRADITION 209

'Reasonable reckonability of result' avoids some of the pitfalls of the

conventional terminology. 10
Llewellyn considered that 'reckonability of result' was in large
part a function of regularity of judicial behaviour. Without attempt-
ing an exhaustive analysis, he identified fourteen 'steadying' factors
which, in his view, tend to promote such regularity:

(I) Law-conditioned Officials.

(2) Legal Doctrine.
(3) Known Doctrinal Techniques.
(4) Responsibility for Justice.
(5) The Tradition of One Single Right Answer.
(6) An Opinion of the Court.
(7) A Frozen Record from Below.
(8) Issues Limited, Sharpened, Phrased.
(g) Adversary Argument by Counsel.
(Io) Group Decision.
(II) Judicial Security and Honesty.
( I2) A Known Bench.
(I3) The General Period-Style and Its Promise.
(I 4) Professional Judicial Office.u

With the exception of 'style', Llewellyn was content to deal with

these factors on a common-sense basis, without defining his terms
with precision or trying to establish by empirical means how and to
what extent each factor affects judicial behaviour. It has been
pointed out that he failed to consider, inter alia, the interrelation-
ship between the various factors, the extent and nature of overlap
and their relative importance. 12 Nevertheless the same critic
acknowledges that the discussion 'is probably the most elaborate
analysis of the nature of those discrete elements that substantially
contribute to a constraint upon a judge (as contrasted with all other
types of policy-makers) in arriving at a choice between altema-
tives.'18
Despite the limitations of this type of common-sense approach
his treatment of the steadying factors is an example of Llewellyn
at his best: a useful summary of years of the lessons of experience,
balanced, perceptive and unpretentious. Its role in the argument is
to remind readers of the presence of a number of factors which they
would probably agree tend to some extent to promote regularity,
and hence predictability, of judicial behaviour. The section purports
210 KARL LLEWELLYN AND THE REALIST MOVEMENT

to do little more than provide a context for the detailed considera-

tion of one of the factors-period style.

Styleu
Llewellyn's importation of the concept of style into jurisprudential
analysis is a good example of his flair for drawing attention to 'the
neglected obvious'. u Judicial opinions can be extraordinarily
varied in respect of length, explicitness, individuality, the nature
and range of source materials relied on, the manner of handling such
materials, the modes of reasoning, and so on. 'Style' is a useful
generic term encompassing such characteristics of a series of opinions
as may be considered to be distinctive. It implies, albeit vaguely, a
degree of consistency in these characteristics. In Llewellyn's usage
the term refers to the manner of thought exhibited in judicial
opinions rather than to their literary style, in so far as these are
distinguishable. 18 One of the steadying factors in appellate courts
is the predominating style of a particular period. This is given
special prominence in The Common Law Tradition:

It is the general and pervasive manner over the country at large, at any
given time, of going about the job, the general outlook, the ways of profes-
sional knowhow, the kind of thing the men oflaw are sensitive to and strive
for, the tone and flavor of the working and of the results. It is well described
as a 'period-style'; it corresponds to what we have long known as period-
style in architecture or the graphic arts or furniture or music or drama. Its
slowish movement but striking presence remind me also of shifting 'types' of
economy ('agricultural', 'industrial', e.g.) and of the cycles or spirals many
sociologists and historians discover in the history of political aggregations or
of whole cultures. 17

In The Common Law Tradition two types of style are postulated :

The Grand Style and the Formal Style. The Grand Style is epitom-
ized in the work of the American courts in the r84os and r8sos, and
by judges such as Mansfield, Marshall, Kent, Cowen, Cardozo and
Learned Hand. 18 It is 'the style of reason':
••• as overt marks of the Grand Style 'precedent' is carefully regarded, but
if it does not make sense it is ordinarily re-explored; 'policy' is explicitly
inquired into; alleged 'principle' must make for wisdom as well as for order
if it is to qualify as such, but when so qualified it acquires peculiar status.
On the side both of case-law and of statutes, where the reason stops there
stops the rule; and in working with statutes it is the normal business of the
 THE COMMON LAW TRADITION 2I I

court not only to read the statute but also to implement that statute in
accordance with purpose and reason. 1 '

The Formal Style is authoritarian, formal, and 'logical'.

The rules of law are to decide the cases; policy is for the legislature, not for
the courts, and so is change even in pure common law. Opinions run in
deductive form with an air or expression of single-line inevitability. 'Prin-
ciple' is a generalization producing order which can and should be used to
prune away those 'anomalous' cases or rules which do not fit, such cases or
rules having no function except, in places where the supposed 'principle'
does not work well, to accomplish sense - but sense is no official concern of a
formal-style court; so

The two styles differ in three major respects: first the Grand Style
continually looks at the reason or 'principle' behind the rule, the
Formal Style tends to emphasize bare precepts.21 Secondly, the
Grand Style is characterized by resort to 'situation sense', a concept
which will require elucidation later; the Formal Style shuns overt
consideration of social facts and takes refuge in the repetition of the
terminology into which rules have been crystallized. Thirdly, the
Grand Style is concerned with the sequence of rules and
decisions and with providing guidance for the future far more than
the Formal Style. 22 Different aesthetic urges are to be found behind
each style; in the Grand Style the quest is for functional 'beauty'-
fitness for purpose. In the Formal Style 'esthetics drove in the direc-
tion of cold clarity'. 28
The differences between the two styles can be further illustrated
in concrete terms: in the interpretation of a statute invocation of
the literal rule of interpretation would be characteristic of the
Formal Style; the mischief rule and the golden rule belong to the
Grand Style.24 In the handling of adverse precedents, distinguishing
on the facts where the distinction cannot be justified in terms of sense
or reason, simple citation of cases without discussing the facts,
and use of precedent techniques branded by Llewellyn as 'illegiti-
mate', would all tend to indicate the Formal Style. 2 ~ Giving explicit
consideration to the reputation of the judges in the prior case, the
reinterpretation of a series of cases by classifying them on their
facts into categories based on articulated principle; or when a
'principle theretofore unphrased is extracted from the decisions and
applied' 26 or other 'fresh starts from old materials' 27 would
seem to belong to the Grand Style. Other indicia of the Formal Style
2I2 KARL LLEWELLYN AND THE REALIST MOVEMENT

would include such statements as 'I must regretfully conclude .. .',

or 'Policy is for the legislature, not the courts', or a reiteration of
some version of the declaratory theory of the role of the judge.
If this interpretation is correct the Grand Style and the Formal Style
can be restated in the form of ideal types as in table I (opposite).
Llewellyn made no secret of his preference for the Grand Style.
Indeed, 'formal' and 'grand' both have distinct emotive associations.
Yet he intended that the two categories should be used descriptively.
It is incorrect to reason: 'I do not like this opinion, therefore it
belongs to the Formal Style.' 28 He was quite emphatic 'that the Grand
Style, the Style of Reason, does not, as must always be insisted,
guarantee an outcome or the use of a reason or the production of a
rule of law which I like or agree with, nor yet one which you like or
agree with.' 29 Nor is it paradoxical to talk of a poor Grand Style
opinion: invocation of the mischief rule may be accompanied by
an unacceptable diagnosis of the mischief ;80 formulation of a
reason behind the rule may be open to criticism as being incomplete
or too broad 81 or inconsistent with some other reason or otherwise
defective; it is not inconceivable that a Grand Style opinion might
involve the use of an 'illegitimate' precedent technique. Above all,
the Grand Style does not necessarily accompany desirable results and
the Formal Style undesirable results: 'style' refers to the mode of
justifying the result rather than to the result itsel£. 82 Neverthe-
less, since the indicia of each type of style are not defined with
precision, the reader may feel that in some passages in The
Common Law Tradition Llewellyn's emotional reaction to an
opinion may have been a factor in characterizing it as belonging
to one style or the other.
In The Common Law Tradition the concepts of Grand Style and
Formal Style are mainly used to depict general trends in broad
terms. For such a purpose they are adequate as descriptive tools,
just as there are contexts in which talk of styles in architecture or
even 'schools' of thinkers may be adequate, even apt. However, in
other contexts it may be as dangerous and misleading to pigeon-
hole judges or courts into styles as it is to lump jurists into schools. 88
The Common Law Tradition contains the seeds of a potentially
fruitful approach to the comparative analysis of judicial opinions
and of courts as working institutions. For example, to take a repre-
sentative sample of the opinions of a court and compare and contrast
it with a similar sample of the opinions of the same court at a different
TABLE 1:
RESTATEMENT OF GRAND STYLE AND FORMAL
STYLE AS THEORETICAL MODELS

Grand Style Forma/Style

Model oflegal rule

Top<Oduttl
z or for reasons z if x, Ifx, theny
or to remedy then
mischiefz y
Principle A general proposition A rule of a general kind
embodying a policy; which may be used as the
its function is to guide, basic premise of a
but not to control syllogism
interpretation
Diagnosis of a The scope of x is The scope of the rule is
problem involving a doubtful clear, but its application
question oflaw is doubtful
Court's conception ( 1) To resolve the doubt To discover and declare
of its role according to wisdom, the applicable rule and to
justice and situation apply it to the facts of this
sense within the leeways particular case
accorded by the
authoritative sources
(2) To provide guidance
for the future
Sources which may ( 1) Authoritative sources ( 1) Authoritative sources
be invoked in such as statutes and cases such as statutes and cases
justification (2) Principle (see above) (2) Principle (see above)
(3) Policy, situation (3) 'Logic'?
sense and 'reason'.
(4) Social research
findings (e.g. Brandeis
brief)
Typical techniques ( 1) Mischief rule (1) Literal rule (statutes)
of interpretation (statutes) (2) 'Simple cites';
(2) Interpretation of dogmatic assertion of ratio
cases in light of situation decidendi, heavy reliance
sense and policy on language of court in
rationales prior case
Aesthetics Functional beauty Elegantia
(fitness for purpose)
Other indicia (1) e.g. cessanteratione, e.g.
cessat ipsa lex (1) 'Itiswithgreat
(2) Open acknowledge-
ment oflaw-making
function, albeit
conclude ••. .
reluctance that I must

(2) 'Thisisacourtoflaw,
interstitial, etc. not of morals'
(3) Declaratory theory of
judicial function, etc.
214 KAR.L LLEWELLYN AND THE REALIST MOVEMENT

time or of one or more different courts is potentially an illuminating

exercise84 But opinions (and courts) are complex phenomena
about which it may be difficult to generalize. Concepts like Grand
Style and Formal Style are best treated as relatively simple theoret-
ical models, more suited for painting a broad picture than for
detailed analysis. 85
The speech of Lord Atkin in Donoghue v. Stevenson may be used
to illustrate this general point. 38 The case is generally regarded as
marking the liberation of the tort of negligence from the doctrine of
privity of contract, thereby enabling the modern law of negligence
to develop with increased sensitivity to changing social conditions.
Lord Atkin's speech exhibits some of the indicia of the Grand
Style: characterization of the situation in terms of modern manu-
facturer and consumer; overt reference to considerations of policy
and justice; careful re-analysis of the prior authorities; and a fresh
start given to the judicial development of the law of negligence.
This speech in Donoghue v. Stevenson performed much the same
function, and has much the same status in English literature and
myth, as has Cardozo's opinion in McPherson v. Buick. 81 At first
sight, therefore, it seems to be a clear example of the Grand Style.
However, an examination of Lord Atkin's handling of precedent
suggests an important reservation. Whereas Cardozo blandly sweeps
through 'precedents drawn from the days of travel by stagecoach',88
Atkin, faced with a series of long established contrary authorities,
employs a number of techniques for disposing of them which could
be described as 'formalistic'. 89 Since the bold innovating judge will
typically be innovating against the weight of authority, he is more
likely to be called on to employ techniques for avoiding or killing
earlier precedents. Some other techniques are 'formalistic' in that
they emphasize minute distinctions, or technicalities (e.g. disting-
uishing on the pleadings), although other techniques of dealing with
contrary precedents, such as overruling or not following or
distinguishing on the basis of some principle or policy, belong to
the Grand Style.'0 In England the strict doctrine of binding prece-
dent combines with a strong tradition of deference to precedents of
English courts whether binding or not. Thus in Donoghue v. Steven-
son Lord Atkin employed 'formalistic' techniques for disposing of
precedents decided in inferior courts when he had power, accord-
ing to the general doctrine of precedent, to overrule or disapprove
or refuse to follow. Thus in the context of England, in order to
 THE COMMON LAW TRADITION 215

produce grand style principles a judge may be under pressure to

employ formalistic means, just as, in The Merchant of Venice,
'justice' (in Shakespeare's view) was secured by invocation of a
formalistic argument. n This is just one example of the way in which
pressures may exist to make grand and formal style characteristics
combine in certain types of context.
Such limitations on the utility of the broad categories of 'Grand
style' and 'Formal style' should not be allowed to obscure the great
potential of the systematic analysis and comparison of judicial
opinions in terms of their stylistic properties.

'Justice' and 'the fireside equities'

Although, as Becht suggests, 'it takes good nerves' for a jurist to make
'justice' a working concept/2 Llewellyn's use of the term need not
occasion undue difficulty. Its principal use in The Common Law
Tradition is in the context of the assertion that conceptions of
'justice' and 'fairness' in fact play an important part in judicial
decision-making and justifying. Judges in fact regularly exhibit 'a
felt duty to Justice, a felt duty to the law, and a third felt duty to
satisfy both of the first two at once, if that be possible'.48 In this
context terms like 'fair', 'right' and 'decent', express adequately the
feelings involved; similarly Edmond Cahn's concretized analysis of
'the sense of injustice' is closer to the judges' conceptions than either
abstract philosophical theories of justice or the vague last resort of
the man with a weak case.44 Considerations of fairness, rightness
and decency affect all courts, but in the Grand Style their influence
is more open and regular. Then they operate not through 'the
fireside equities' (factors peculiar to the particular case that may
provoke sympathy) but at a more general level:

What is of interest ••• is that such words and the idea they carry can hardly
reach and register unless they come all impregnated with a relatively con-
crete going life-situation seen as a type. The next aspect of the crux is that, in
a going life-situation, fairness, rightness, minimum decency, injustice look
not only back but forward as well, and so infuse themselves not only with
past practice but with good practice, right practice, right guidanee of practice:
i.e., with felt net values in and for the type of situation, and with policy for
legal rules. The crux is completed by the obviousness that this drives the
whole 'justice' idea, inescapably in some part (I think, in prime part) for-
ward, into prospect, not merely retrospect: into what one can perhaps call
the quest for wisdom in the decision. u
216 KARL LLEWELLYN AND THE REALIST MOVEMENT

Thus in the Grand Style, and hence in contemporary American

practice, considerations of justice help evaluation of the situation
seen as a type, but do not, and should not, have influence through
the 'fireside equities'.*8 In the Formal Style the same considerations
exert an influence, but less openly and evenly. For the purposes of
The Common Law Tradition it was not necessary for Llewellyn to
put forward a theory of justice of his own and he deliberately
refrained from doing so. It is pertinent to note, however, that the
materials for Law in Our Society contain the outline of such a
theory.47
It has been pointed out that in some passages Llewellyn seemed to
imply that the 'fireside equities' could be (sharply) distinguished
from justice in the type-situation, or in other words that there are
clear criteria for distinguishing between irrelevant and relevant
facts.* 8 In personal injuries litigation, for example, the 'facts' that
the plaintiff is (a) poor, (b) beautiful and (c) a widow are normally
treated as clearly irrelevant to the determination of liability. If these
considerations in fact influence decisions, it is as 'fireside equities'.
But there is a wide range of factors which fall within the no-man's
land of the potentially or possibly relevant-for instance, such
matters as the literacy and the bargaining strength of one of the
parties to a standard form contract. There may be differences
between systems of positive law (and differences of opinion as to the
justice of the matter) in the treatment of such factors as relevant or
irrelevant. Both in positive law and in prevailing conceptions of
justice the criteria of relevance will often be vague; furthermore
determination of relevance is not solely a matter of generality, of
whether 'the facts' fit into a pattern. 'Beautiful widows', for example,
are a type; but they belong to a category of 'facts' which for many
purposes are treated as clearly irrelevant both by law and by accep-
ted canons of justice. Llewellyn did not spell out this point, but it
seems rather unlikely that he would have disagreed with it.

Situation sense
Llewellyn's use of 'justice' may be relatively clear, but some of his
other concepts have occasioned difficulty. In particular, his use of
'situation sense' and 'reason' (occasionally 'right reason') have not
only generated puzzlement but have also raised serious doubts about
the consistency of his position in respect of values.•9 These terms are
introduced immediately after the passage quoted in the last section:
 THE COMMON LAW TRADITION 217

Situation sense will serve well enough to indicate the type-facts in their
context and at the same time in their pressure for a satisfying working
result, coupled with whatever the judge or court brings and adds to the
evidence, in the way of knowledge and experience and values to see with,
and to judge with. Wisdom will serve well enough to indicate a goal of right
decision weighted heavily with and for the future. Reason I use to lap over
both of these, and to include as well the conscious use of the court's best
powers to be articulate, especially about wisdom and guidance in the
result. 50
As it is the most important characteristic of the Grand Style, 'situa-
tion sense' is made a key concept in The Common Law Tradition;
unfortunately it is also one of the most obscure. Llewellyn tried to
explain himself by quoting the German legal scholar, Levin
Goldschmidt:
Every fact-pattern of common life, so far as the legal order can take it in,
carries within itself its appropriate, natural rules, its right law. This is a
natural law which is real, not imaginary; it is not a creature of mere reason,
but rests on the solid foundation of what reason can recognize in the nature
of man and of the life conditions of the time and place: it is thus not eternal
nor changeless nor everywhere the same, but is in-dwelling in the very
circumstances of life. The highest task of law-giving consists in uncovering
and implementing this immanent law. n
There is probably no other passage in Llewellyn's works more likely
to breed puzzlement and misunderstanding than this one. Is this a
headlong plunge into metaphysics?G 2 Is there a soft centre to his
hard-headed realism? Such suspicions seem to be confirmed by a
passage, heavily italicized, which occurs a few pages further on:

Only as a judge or court knows the facts of life, ong as they trub understand those
facts of life, only as they have it in them to rightg evaluate those facts and to fashion
rightg a sound rule and an apt remedy, can they lift the burden Goldschmidt lays
upon them: to uncover and to implement the immanent law. n

'Situation sense' appears to involve 'true understanding' of the facts

and 'right evaluation' of them. But how does one recognize 'true
understanding' of the facts and 'right evaluation' of them. What
are the criteria for determining 'right evaluation', 'right fashioning',
'a sound rule'?
That these passages are, at the very least, unclear is shown by the
different interpretations that have already been given to them:
in a thoughtful criticism of The Common Law Tradition Clark and
!218 KARL LLEWELLYN AND THE REALIST MOVEMENT

Trubeck asume that 'situation sense' must be each judge's personal

intuitive feel for the facts, and they argue that the concept serves to
disguise the important part played by subjectivity in judicial
processes ;64 since Llewellyn's argument is that for the purposes of
prediction the subjective elements can be largely ignored, this
accusation could be rather damaging. On the other hand, Lasswell,
in criticizing Llewellyn for not providing a systematic method of
classifying fact-situations, seems to imply that 'situation sense'
involves the ability to classify correctly any fact-situation into a set
of established categories. 66 In this interpretation 'situation sense',
far from being idiosyncratic and subjective, would involve a compre-
hensive system for classifying social facts, presumably on the model
of Lasswell's own scheme. 60 The present writer, on the other hand,
on first reading the Goldschmidt quotation jumped to the conclusion
that it meant that there is a single perfectly just solution to every
unique fact situation and that 'situation-sense' and 'reason' were the
faculties which help judges in some undefined way to know or to
discover this solution. 67 In this interpretation the passage implies a
species of natural law theory that is intuitionist and metaphysical. A
further examination of these passages suggests either that Llewellyn
was inconsistent or that none of these interpretations was intended
by him. In the first place he did not conceive of 'situation sense' as
depending on personal idiosyncrasies or beliefs; he claimed that the
standard of 'wisdom' to which he was appealing was not a personal
one: 'it is rather a standard which aims to get idiosyncratic prefer-
ences largely hewn off until the standard becomes what the courts
also are reaching for; something which can be hoped, on thought, to
look reasonable to any thinking man; something that can even be
hoped to look reasonable in the light of that uncommon sense,
horse sense.' 68 In short, Llewellyn thought that the choosing of an
appropriate fact-pattern was something other than a purely personal
choice; the validity of Clark and Trubeck's criticism therefore
depends on whether or not he managed to establish 'situation
sense' as transcending such subjectivity. On the other hand, it is easy
to infer from Llewellyn's other writings that he was not prepared
to commit himself to a comprehensive value system of the kind
advocated by Lasswell. 69
It has already been shown that Llewellyn did not believe values
to be in any way objectively verifiable and that he believed the social
'sciences' to have a long way to go before they could be appropriately
 THE COMMON LAW TRADITION 219

termed 'scientific'.80 It is also reasonable to infer that he would not

have denied that choice of an 'appropriate type-situation' or 'to
truly understand and rightly evaluate' necessarily involves making
judgments of value. 81 Llewellyn would concede that the 'sound' way
in which Cardozo found a 'significant pattern' for the facts of
McPherson v. Buick involved not only a realistic insight into social
facts but also a value judgment as to the needs of persons injured by
the product of a large-scale manufacturer. 82 Thus reaching for
'situation sense' is claimed to be a matter neither solely of personal
evaluation nor solely of reference to objectively verifiable categories.
Further Llewellyn often criticized the idea that there should
necessarily be a single just solution or correct answer to every legal
problem. He devoted a whole section of The Common Law Tradi-
tion to criticizing the idea of 'one single Right Answer'!• Just as in
mathematics yl = + r, both answers being equally correct, so
in law several different solutions to one problem could in some
circumstances all be more or less equally reasonable. By what
criteria is this reasonableness to be judged, if not a personal one?
The answer would appear to be 'something which can be hoped,
on thought, to look reasonable to any thinking man'. 8 ' But, it may
be asked, does this mean that thinking men will necessarily agree on
whether a solution is reasonable or not? Llewellyn's answer would
appear to be tentatively in the affirmative; people, he seems to
suggest, who have knowledge of the social background and who
have tried to work out a series of possible solutions are more likely
to agree that certain solutions are worthy of approval than are
people who make decisions in the dark. Or, to put it another way,
people by the use of reason can at least narrow the range of their
disagreements. BG
At least three different interpretations of 'situation sense' have
been advanced that do not seem to accord with Llewellyn's general
position. This should be sufficient to substantiate the charge of
obscurity; it also raises a prima facie case of latent ambiguity. Two
questions need to be asked in this respect: (i) did Llewellyn use
'sense' consistently? (ii) under what conditions can it be said that
'situation sense' is exhibited in a judicial opinion?

The meaning of sense: The Shorter Oxford Dictionary lists three

primary meanings of the word 'sense': a faculty or capacity of
perception or sensation, as in 'the five senses'; actual perception or
220 KARL LLEWELLYN AND THE REALIST MOVEMENT

feeling, as in 'his sense of the occasion'; and meaning or significa-

tion, as in 'he used the word in that sense'. Related words like
'sensible' and 'sensitive' have a similar but not coextensive range of
meanings. In Llewellyn's usage of 'situation sense' is he referring to
a faculty or to actual perception or to the signification or meaning
of a situation or to something else? It is by no means certain that
he was consistent. Sometimes he talks of 'use of situation sense' / 6
'bringing situation sense to bear' 67 and of 'judges' situation sense
at work'. 88 This usage suggests that 'situation sense' is a faculty or
capacity, like 'horse sense' or 'common sense'. This usage has associa-
tions with 'sensitive', as when he speaks of 'courts sensitive to
decency' 811 or 'insensitive to the life-situation'. 70 It is also reason-
able to infer an association in Llewellyn's mind with 'horse sense'
and 'sensible' (the favourable associations of which are also to be
remarked). 71 Thus a court is sensitive to a situation and sensible in
using situation sense. In other contexts, however, 'sense' and 'situa-
tion sense' seem to be related to the situation rather than to the court
or the judges. Thus Llewellyn talks of 'the quest for sense', 72 of
'problem-situation and its sense' 78 and 'what is seen as the vital
situation sense' ;7 ' in these contexts 'sense' cannot mean faculty,
but it could mean either 'the meaning of the situation' or what would
be sensible (i.e. judicious) in this situation.
Examination of Llewellyn's use of language suggests that he
thought associationally about sense, sensible, horse sense, sensitive
and situation sense and that he may at times have unconsciously
switched meaning from passage to passage. Some such switches may
be relatively harmless (although indicative of loose thinking), as
when in ordinary usage the word 'sensible' is applied indiscrimin-
ately to a judge, to a decision and to a result. However, talk of
'the meaning of the situation' or of 'discovering sense' 73 in the facts
has the same suggestion of a plunge into metaphysics as talk of
'recognizing', 'uncovering' or 'finding' 'immanent law'-the sugges-
tion that somehow lurking within the situation is something which
may be found, though not by any known empirical methods (but
perhaps by a sixth or seventh 'sense'). If this analysis is correct it
gives support to the view that Llewellyn was lured by his flirtation
with natural law into a deviation from his normal stance as an
empiricist and ethical relativist. However, the extent to which this
detracts from the main thesis of The Common Law Tradition
remains to be considered.
 THE COMMON LAW TRADITION 221

The indicia of 'situation sense': Even if 'sense' is confined to a

faculty of making a sensible interpretation of a situation, the question
remains: what are the indicia that this faculty has been exercised?
It has been suggested that situation sense may be 'a Janus-faced
concept' in that Llewellyn appears to give different types of reasons
for concluding that it has been operative. 76 Rohan points out that
sometimes it appears to involve familiarity with the general back-
ground of the facts-for instance, familiarity of an expert or near
expert with the relevant trade practices in a commercial case. 77 In
such instances 'familiarity' does not imply any explicit value judg-
ment about 'needs' or other desiderata. In other instances, however,
'sense' is related overtly to some broad policy or principle, which
clearly involves a judgment of value. 78 The point may be illustrated
by comparing Llewellyn's treatment of the cases of McPherson v.
Buick and Legniti v. Mechanics and Metals National Bank. 19 He
finds situation sense in McPherson v. Buick in a principle based
upon a judgment about 'the needs of life in a developing civiliza-
tion', with its scope broadly indicated by such 'situational concepts'
as manufacturer, modern consumer, and defective products. 80
Rohan contrasts Llewellyn's treatment of this case with his
comments on some commercial cases which suggest 'that the essence
of situation sense is a grasp of financial and banking practices',81
one of the instances cited in his remarks on Legniti v. Mechanics
and Metals National Bank. The principal issue in this case was
whether an oral promise by a bank to cable a transfer of sterling
(i.e. a foreign exchange transaction) was covered by the statute of
frauds. The court upheld the contract in the light of commercial
practice in respect of foreign remittances. Although the weight of
authority plainly supported the view that this was a 'contract to
sell' within the terms of the statute, Llewellyn was prepared to
justify the result on the grounds that:
(r) Foreign exchange deals fall outside the statute's purpose and policy;
oral deals not only work, but are necessary. (2) Foreign exchange is a
significant unit-type of situation, whether the form by (sic) the bank's draft
(not sold, but issued), or a payment (no sale, but a service), or a credit. Any
distinction based on form would be arbitrary. Hence for this purpose, estab-
lishing a credit would also be treated as a service, and so outside the
statute. 81
Llewellyn elaborates on the matter as follows:
Surely the nub lies in the information from the briefs that word of mouth
222 KARL LLEWELLYN AND THE REALIST MOVEMENT

is the common method of closing such transactions and that an upset 'will
be productive of much inconvenience' •.•. It is a good nub, and a wise
decision; but there is nothing which suggests that the necessary understand-
ing of situation and need was sitting, ready, on the bench; Cardozo's
appreciation of banking, for instance, had no at-homeness at all in the
hands-and-feet techniques of commercial bank operation. No, what we
have is advocacy informing the court at the appellate stage about wise choice of
concept and consequent rule, in view of the inherent needs of the type of
situation; informing so persuasively that the court turns its back on the
plain text of a statute to strong-arm an exception which the legislature has
lacked the knowledge and prudence to provide. 88
This statement is quoted by Rohan as an example of 'situation
sense' referring to how things are done in commercial practice
(i.e. a purely factual criterion) rather than to some policy or
principle. 8 • However, the passage does not support this interpreta-
tion; rather it suggests that 'situation sense' always involves both
elements. Llewellyn's usage is, for the most part, consistent with this
latter view. In the above passage the relevant policy is all but ex-
plicitly stated, viz. that the rules of the commercial law should suit
the convenience and needs of bankers (inter alios). The fact that in
very many commercial cases this policy (and others like it) is not
in issue does not affect the point that in Llewellyn's use of 'situation
sense' there is always at least one principle or policy involved.
Sensitivity to the situation includes awareness of what policies or
principles are relevant; in the Grand Style of judging they are typic-
ally made explicit. Where there is no conflict of principles, 'wise'
decision is correspondingly easier. Where principles are in issue
sensitivity to the situation will aid posing the issue in appropriate
terms; but 'situation sense' offers no magic formula for choosing
between competing principles. By 'Janus-faced' Rohan seems to
mean that 'situation sense' is ambiguous in that it refers either to
relevant policies or principles or to actualities of contemporary social
life, such as existing commercial practice or usage. 83 Such an inter-
pretation is probably unfair to Llewellyn, who seems generally to
treat 'situation sense' as encompassing both elements. In some c:ases
the main source of difficulty may be identifying relevant prjnciples
or choosing between competing ones; in others it may lie in classi-
fying the facts appropriately; in yet others there may be difficulties
about both phases. In all cases, however, exhibition of 'situation
sense' involves both steps: the formulation of principles or policies
 THE COMMON LAW TRADITION 223

and the classification of the facts into a general type-fact-situation.

Indeed, it would be artificial and misleading to separate formulation
of policy from classification of facts, because they are to a large
extent interdependent.
If this interpretation is correct, further questions arise: what are
acceptable principles? What are the criteria of 'appropriate' classi-
fication? Not surprisingly, Llewellyn did not allow himself to be
drawn into giving dogmatic or precise answers to these questions. He
was well aware that they are a fertile potential source of disagree-
ment, even among 'reasonable' or 'thinking' men. 86 If this were not
the case, judicial decision-making would not be so problematic.
However, this is not to say that he provided no guidance or suppres-
sed his personal views. There is a wealth of concrete illustrations in
The Common Law Tradition of employment of 'situation sense' by
judges. There are thus many examples of articulated principles and
policies and of categorization of facts into general 'type-fact situa-
tions'. To report that a judge has articulated a principle or policy
or has made such a categorization does not commit the reporter to
approval of what he has reported. Thus to say 'Judge X exhibited
situation sense' can be descriptive of Judge X's behaviour, without
implying approval or disapproval. However, Llewellyn not only
approved of situation sense, but also of many of the policies and
categorizations that he found in the cases. Sometimes he kept
separate his reporting of the result and of the style of the opinion
from his evaluation of them. Sometimes, however, description and
evaluation are not kept clearly distinct. Moreover, terms like 'Grand
Style', 'sense' and even 'situation sense' carry clear suggestions of
approval. Often this is excusable, because of the need to be succinct,
but Llewellyn's analysis might have been more lucid if he had
distinguished more clearly reporting on the use of situation sense
from approving or disapproving of a judge's justification for his
decision, which should in turn, be kept separate from approving or
disapproving of the result in the case.87

The quotation from Goldschmidt revisited: The foregoing interpre-

tation may provide the basis for a constant use of the term 'situa-
tion sense', but it does not explain Llewellyn's enthusiasm for the
quotation from Goldschmidt concerning 'immanent law'. 88 It may
be argued that that passage adds nothing to The Common Law
Tradition, but the fact remains that Llewellyn clearly thought that
224 KARL LLEWELLYN AND THE REALIST MOVEMENT

it did. The term 'immanent law' carries with it the suggestion of

something pre-existing, awaiting human discovery. This in tum has
a metaphysical ring of the sort that arouses the suspicions of empiric-
ally minded jurists. Llewellyn, despite his late flirtation with
Catholicism, remained firmly in the empirical tradition of juris-
prudence. What then can account for this seeming deviation into
metaphysics?
One possible explanation has already been suggested in chapter
6.89 The Goldschmidt passage is remarkably similar to the final
paragraph of Corbin's 'The Law and the Judges', a paper which
anticipates to an extraordinary degree some of the main themes of
The Common Law Tradition and which made a great impression on
the young Llewellyn. The passage from Corbin reads as follows :
'That judge is just and wise who draws from the weltering mass the
principle actually immanent therein and declares it as the law. This
has always been the judicial function in all countries, and for its
performance the judge must bear the responsibility. 90 The 'welter-
ing mass' in this context refers to the common consciousness of
ordinary people rather than Goldschmidt's 'circumstances of life',
but the idea of the wise judge uncovering immanent principles of
law is strikingly similar. Llewellyn does not seem to have remembered
'The Law and the Judges' while writing this part of The Common
Law Tradition, but his enthusiasm for the Goldschmidt passage
might be explained in part by a feeling that he 'recognized' it with-
out realizing why it seemed familiar. This must remain a matter of
speculation and is probably only a partial explanation, even if
correct. For a further clue we must look elsewhere.
'Situation sense' became a part of Llewellyn's vocabulary at a
late stage and it is fair to say that his use of this term and some others
in The Common Law Tradition would have benefited from some
closer analysis; his belief in the wide range of agreement as to values
among 'thinking men' also appears to be based more on faith than
on evidence. It is significant that both Goldschmidt and Llewellyn
were specialists in commercial law and that the context of the quota-
tion from Goldschmidt is a discussion of commercial law. 91 It is
also significant that Goldschmidt was a disciple of Savigny and in
his work on the 'Universal History of Commercial Law' he made
use of the concept of 'Volksgeist' to describe the influence on the
growth of the law of the ethos, the felt needs and the working expec-
tations and usages of the mercantile community at different times
 THE COMMON LAW TRADITION 225

in history. There are few branches of law which concern directly

such a close-knit community with such a wide range of agreement
as to what is 'right', 'fair' or 'reasonable'. It is possible to infer that,
in Llewellyn's view, a 'sound' decision uncovering the 'immanent
law' would be one in which the judge has sufficient experience and
understanding of the usages and ethics of the particular trade and
the way this kind of transaction would be conducted and how it
fitted into the general pattern of commercial usage to be able to
know what kind of solution would be likely to be deemed reasonable
and acceptable by the mercantile community. A judge in a commer-
cial case who can see the facts in the way businessmen would see
them, as well as from the lawyer's point of view and from the point
of view of the 'mores' of the community as a whole, has grasped
the 'situation sense', and if he has a better than average under-
standing of the situation and the problem it presents, he has
'wisdom'. Lord Mansfield employed panels of merchants; 92 he also
used to dine regularly with merchants from the city and cross-
examined them closely about the practices of the more reputable of
their number, thereby no doubt acquiring some of the essential back-
ground which made him adept at getting at 'situation sense'.
In the context of commercial law, 'situation sense' may be a
meaningful, indeed an illuminating, term, although unrefined. But
the law has to deal with communities among which values are by
no means so widely shared and it also has to settle and prevent
disputes between conflicting groups. If it were possible and proper
for judges to commune regularly with trades union leaders and
tycoons, with manufacturers and officials of consumer associations,
they might well gain additional insights into the practices, ex-
pectations and predominating values of such groups, but whence
would they derive 'appropriate' values for passing judgment on
such conflicts of interest? Llewellyn does not appear to have faced
this kind of question squarely, but one can infer from his writings
part of the answer he might have given: first, a judge who consis-
tently attempts to get 'a feel for' the situation as it occurred is more
likely to see clearly what conflicts of value, if any, are involved in
the dispute than a judge who looks at 'the facts' through the
spectacles of formalism. As an obvious example, when judges feel
themselves bound by doctrine to ignore the insurance element in
dealing with motor accident claims in negligence, they will be ignor-
ing situation sense. In individual cases the insurance factor may
226 KARL LLEWELLYN AND THE REALIST MOVEMENT

influence the decision under cover, as a fireside equity, with a con-

sequent loss of reckonability of results. For the 'real' conflicts (in
terms of the realities from the point of view of the parties and of
non-lawyers generally) are not being faced up to explicitly but
nevertheless may be exerting a pressure 'as disturbing or upsetting
as an undertow'. 98 Secondly, it will also be found that in many
disputes no serious conflict of values is involved and that once the
facts are seen in a certain way the solution is self-evident, in the
sense that as between the parties and/ or in the eyes of the commun-
ity as a whole no disagreement that may exist as to values is relevant
to this particular dispute.
Thus one may conclude that Llewellyn's espousal of Gold-
schmidt's 'immanent law' did not necessarily commit him to some
metaphysical theory. It is possible to explain his attachment to the
passage and at the same time to put an interpretation upon it and
upon the concept of 'situation sense' which is intelligible to the
empiricist. The context of the Goldschmidt passage does suggest,
however, that 'situation sense' is most appropriately used in respect
of disputes which arise within groups or sub-groups which have an
underlying consensus about relevant values. On this interpretation
Llewellyn's advice to judges on the use of situation sense might be
re-stated in some such terms as these:

Situation sense (summary)

Facts: (a) In interpreting a reported case, or in approaching a
current case, start by studying the facts as a layman familiar with
their general context might see them. Try to grasp what would have
happened if things had been working smoothly and what it was
that brought the dispute about. Analyse what interests are in conflict
and formulate statements of policy that may be relevant.
(b) Try to fit the facts into some socially significant category or
pattern, separating clearly irrelevant 'fireside equities' peculiar to
this case from potentially relevant elements in the situation. In seek-
ing for appropriate categories the following guidelines should be
observed: (i) in categorizing the facts choose 'situational concepts'-
i.e. categories which clearly refer to fact situations only and do not
straddle facts and legal consequences; (ii) terms used and distinc-
tions drawn by persons familiar with the context of the dispute
(either as experts, observers or participants) may provide appro-
priate categories; (iii) the practices and expectations of such persons
 THE COMMON LAW TRADITION 227

may also be of use; 9 • (iv) one aspect of the problem is to character-

ize the facts at an appropriate level of generality. No general formula
exists for this but: (a) the facts should be characterized as a type;
(b) in first instance, the facts sl,ould be characterized fairly narrowly
(e.g. hospital employing a doctor rather than employer-employee)
and movement up the ladder of abstraction to broader categories
should proceed with awareness of the dangers of lumping together
disparate social situations under one head. 95

Values: (a) Sometimes it will be found that after the facts have been
categorized, there may be a consensus within the affected group or
within society as a whole respecting applicable policies or principles.
In such cases the selection of an appropriate situational concept may
be sufficient to resolve the problem.
(b) in other instances, a conflict of principles or policies may be
found. In such cases the process of categorization should have assis-
ted in identification of the issues of policy, etc. but will not in itself
resolve such conflict. However, even if reasonable men might dis-
agree on the choice of conflicting policies, they might share common
ground in limiting the range of choices.

Measures: (a) Determine what you consider to be the most appro-

priate line or direction of treatment and only then; (b) decide on
what specific prescription is appropriate. 96
This procedure provides no cure-all for finding 'appropriate' cate-
gories or choosing between competing values. 'No technique or
method can ever be a cure-all'. 97 It will not assist in the disposition
of marginal cases. Nevertheless it provides a broad framework which
should maximize the role of reason in solving problems presented
to appellate courts.

Reason and Candour

What is new in juristic thought today is chiefly the candor of its processes.
(Cardozo) 18
An institution we could not honor naked, we should not dare to strip.
(Llewellyn)"
Llewellyn referred to the Grand Style as the style of reason; 100
indeed, situation sense and reason are the two principal indicia of
the style. In his usage 'reason' was closely associated with candour
and openness.101 It is the converse of arbitrariness. A judge uses
228 KARL LLEWELLYN AND THE REALIST MOVEMENT

'reason' when he makes articulate the premises of his reasoning,

especially those premises which take the form of a value judgment or
of a statement of purpose or policy. Thus the style of reason is the
style of articulated reasons.
Llewellyn's emphasis on articulation was not restricted to justifi-
cation of judicial decisions. He had no patience with the 'modern
fetish of secrecy' 102 about judicial conferences, jury deliberations
and other aspects of decision-making. An important objection to
the Formal Style was that 'innovation also moved under cover, "like
some Victorian virgin tubbing in her nightgown" '. 103 Central to
his approach to law teaching was a rejection of the view that the
crafts of law are a matter of ineffable art and that success in practice
depends entirely on a combination of luck, innate ability and un-
analysable 'experience'.
There is a strong vein of reticence within the common law tradi-
tion which runs counter to the candid rationalism espoused by
Llewellyn. Suspicion of the realist movement has often gone deeper
than the articulated criticisms of views attributed to realists. In some
circles the realists have had an image of vulgar iconoclasts or
muckrakers, characterized by a prurient interest in judicial
psychology and digestion. The suggestion is that their concerns were
in some way improper and their motives suspect. Another kind of
attitude was revealed in a conversation between Llewellyn and a
distinguished English judge, shortly before the former's death. The
story goes that Llewellyn had expressed the opinion that it was
desirable that judges should be quite open about the policy reasons
that might influence their decisions and he had elaborated this
view along the lines of his thesis in The Common Law Tradition.
Llewellyn's argument was dismissed as naive and pernicious non-
sense, at least in respect of the English context, on two principal
grounds. First, that it was important to maintain at least the fac;ade
of the separation of powers; and, secondly, that a principal source
of strength of the operation of the higher courts in England lay in
the intimacy and trust that underlies the relationships of bar and
bench, so that a great deal is communicated via tacit assumptions
and subtle nuances which are just the opposite of the laborious and
unglamorous approach that Llewellyn seemed to be advocating.
History does not relate how this conversation ended, but there is
ample evidence that Llewellyn was far from being a juristic Gregers
Werle/ 0 ! concerned to shatter myths and illusions regardless of
 THE COMMON LAW TRADITION 229

the consequences. He was quite explicit in justifying his emphasis

on the value of articulation and candour. His principal reason was
related to his concern for the improvement of 'juristic method'.
First, 'covert tools, are not reliable tools' ;10G the road to progress
lies through conscious, rational and articulate method. Secondly,
whereas some of the best practitioners may intuitively grasp the
underlying principles of sound technique, the less talented may need
to have even the obvious spelled out for them. Moreover, even the
talented may find that systematic study of certain techniques may
be quicker and more efficient than leaving them to be picked up by
trial and error in practice. Hence Llewellyn's emphasis on the need
for a 'theory of the legal crafts' and for the development of the
teaching of skills as a part of formal legal education. Llewellyn was
fond of recounting the fable of the centipede who became paralysed
through wondering how he managed to coordinate his many legs.108
The fable provides a salutary warning to the enthusiast for 'system-
atic' training in skills, both by reminding us that the most efficient
way of learning some things is merely by doing them without think-
ing and by underlining the point that the skilful practitioner is not
necessarily the person best suited to analyse and communicate the
ingredients of his skill: 'The study of craft-work, the analysis there-
of, the reduction of such matters to communicable working
principles, is a separate art; there is a place for the side-lines man,
if he can use his eyes.' 107
To Llewellyn there was some value in the fable of the centipede,
but, as he remarked in The Common Law Tradition, it was also
important to remember that an appellate judge (or any other lawyer)
is not a centipede. 108
There was no essential conflict between Llewellyn's realism and
his sometimes romantic love of tradition. Without succumbing to
the Chinese argument that our ancestors were in all respects wiser
than ourselves/ 09 he tended to believe that much wisdom underlay
most of the institutions of the common law and that they were, for
the most part, functionally sound. This being so, detached observa-
tion and rigorous functional analysis should be welcomed rather
than feared by the lover of tradition.

Reason and Motive

Fundamental to discussion of judicial processes is the distinction
between the study of judicial reasoning (the logic of justification)
230 KARL LLEWELLYN AND THE REALIST MOVEMENT

and the study of judicial decision-making (the process of decision.)

The former type of enquiry requires the concepts and techniques of
logicians and philosophers and is concerned with such questions
as: to what extent do judges employ deduction, induction, reason-
ing by analogy and other types of reasoning in justifying their
decisions? To what extent do judicial conclusions follow necessarily
from their premises? Are there unique features of legal reasoning
which differentiate it from other types of reasoning? What consti-
tute good or valid reasons in legal justification? And so on. Such
questions can be discussed without commitment to any particular
conclusion about the causal connection between reasons articulated
by judges in justifying their decisions and the decisions them-
selves.110 On the other hand, enquiries of the second type are
principally, though not exclusively, of a causal nature. The
principal question here is: what factors actually influence judicial
decision-making? This question concerns motivation; accordingly
it requires an answer based on an acceptable psychological theory.
It does not follow from this that psychologists are necessarily better
equipped than lawyers to pursue this kind of enquiry, for it requires,
inter alia, intimate knowledge of judicial procedures and ways of
work, of the legal frame of reference, and of the kinds of phenomena
that Llewellyn lists as major steadying factors in The Common Law
Tradition. It may well be easier for a lawyer to acquire the neces-
sary psychological equipment than for a psychologist to acquire
an adequate foundation in law. Nevertheless the question is essen-
tially a psychological one.
Sometimes in jurisprudential writings the distinction between
study of the process of decision and study of the logic of justifica-
tion is glossed over or ignored. Phrases like 'the nature of the judicial
process' or 'judicial thought processes' or even 'decision-making'
are used sometimes to refer to one type of enquiry, sometimes to the
other, sometimes to both. The practice of glossing over the distinc-
tion is understandable, although it is not to be condoned. For there
is a close connection between the two types of enquiry. The connect-
ing link is the question: to what extent do the reasons advanced
in justification reflect the actual motives for judicial decisions? (or,
to put the matter more succinctly, but less precisely: how rational is
judicial decision-making?) While it is possible to imagine someone
studying judicial logic while believing that the reasons articulated
 THE COMMON LAW TRADITION 23I

by judges were 'mere rationalizations' bearing no relation to their

actual motives, it is unlikely that the majority of serious students of
legal reasoning proceed on such an assumption, if only because it
would cast grave doubts on the value of their activity. It is reason-
able to assume that most students of the subject believe that there is
at least some correlation between judicial reasons and motives. 111
Llewellyn did not fall into the elementary trap of confusing
description of process with justification of results. He stated clearly
that 'the opinion has no function of describing the process of decid-
ing', 112 yet he was equally clear in his dissent from the view that
judicial opinions are to be dismissed as 'mere rationalizations' which
are valueless as tools for prediction.111
The Common Law Tradition treats of the prediction of results
(decisions) through the study of opinions (justifications). Part of the
argument is that Grand Style opinions provide a more reliable basis
for predicting future decisions than Formal Style opinions, for two
reasons: first, because more of the factors influencing a decision are
brought out into the open; and secondly because the process of
consciously treating these factors enhances the chance of their
operating in a regular manner. In other words, conscious rational
treatment of those factors is less erratic and arbitrary than pretend-
ing to ignore them. Llewellyn was not committed to the position
that the reasons given in a Grand Style justification are the only
factors influencing the decision,m but by and large there is a strong
likelihood that they will be among the most important ones. Thus in
the Grand Style there is more overlap between reason and motive
than in the Formal Style. Accordingly a sequence of Grand Styl<"
opinions, taken with other known steadying factors, may provide
an adequate working basis for the practitioner to make reasonably
confident predictions. Whether Llewellyn satisfactorily established
his claim that the Grand Style in fact promotes predictability will be
considered in detail below.

Leeways for interpretation of authoritative sources

Legislative enactments (including constitutions, statutes and sub-
ordinate legislation) and decided cases are the two principal
authoritative sources of law in Anglo-American jurisprudence. As
such they contain the main raw material for fashioning legal
doctrine and for providing answers to questions of law posed in
appellate cases. Some of the most original aspects of The Common
232 KARL LLEWELLYN AND THE REALIST MOVEMENT

Law Tradition are to be found in Llewellyn's discussion of the

nature of the discretion that courts have in interpreting cases and
legislation and of the range of techniques which are in fact used
by American courts in the process of inteq:}retation. 115 The general
nature of case and statute law is only cursorily discussed in The
Common Law Tradition itself; instead Llewellyn built on a number
of ideas which he had elaborated in earlier works. To avoid repeti-
tion his various writings on interpretation are here considered to-
gether, first in respect of cases and then of statutes.

Case Law: There is a close connection between the emphasis placed

by Llewellyn on disputes and dispute-settlement in his theory of
law-government and his approach to precedent as a source of law.
This is brought out by the opening paragraph of his article on 'Case
Law' in The Encyclopaedia of Social Sciences:
Case law is law found in decided cases and created by judges in the process of
solving particular disputes. Case law in some form and to some extent is
found wherever there is law. A mere series of decisions of individual cases
does not of course in itself constitute a system of law. But in any judicial
system rules of law arise sooner or later out of such decisions of cases, as rules
of action arise out of the solution of practical problems, whether or not such
formulations are desired, intended or consciously recognized. These
generalizations contained in, or built upon, past decisions, when taken as
normative for future disputes, create a legal system of precedent. Precedent,
however, is operative before it is recognized. Toward its operation drive all
those phases of human make-up which build habit in the individual and
institutions in the group: laziness as to the reworking of a problem once
solved; the time and energy saved by routine, especially under any pressure
of business; the values of routine as a curb on arbitrariness and as a prop of
weakness, inexperience and instability; the social values of predictability;
the power of whatever exists to produce expectations and the power of
expectations to become normative. The force of precedent in the law is
heightened by an additional factor: that curious, almost universal, sense of
justice which urges that all men are properly to be treated alike in like
circumstances. As the social system varies we meet infinite variations as to
what men or treatments or circumstances are to be classed as 'like'; but the
pressure to accept the views of the time and place remains. 111
Llewellyn's most extensive published discussion of case law is to
be found in chapters II to IV of The Bramble Bush. These forty-
five pages remain one of the best introductions to the subject in
print. They defy summary and there can be no substitute for read-
 THE COMMON LAW TRADITION 233
ing the original. In the present context we are principally
concerned with the malleability of judicial opinions, i.e. what it is
about them that allows for differing interpretations to be put on
them.
In interpreting a prior decided case a lawyer is concerned with
four principal elements: the statement of facts, the issue or issues of
law before the court, the result of the case, and the reasons given
in justification of the result. Llewellyn considered the existence of
leeways for interpretation of prior cases to be based on three inter-
dependent factors: (i} the pliancy of the facts; (ii) the lack of fixed
verbal form in the formulation of issues and of rules used in justific-
ation; and (iii) the range of legitimate techniques available to inter-
preters in handling prior cases.

(i) The facts: A famous passage from The Bramble Bush makes
the main point:
Where are the facts? The plaintiff's name is Atkinson and the defendant's
Walpole. The defendant, despite his name, is an Italian by extraction, but
the plaintiff's ancestors came over with the Pilgrims. The defendant has a
schmautzer-dog named Walter, red hair, and$3o,ooo worthoflifeinsurance.
All these are facts. The case, however, does not deal with life insurance. It is
about an auto accident. The defendant's auto was a Buick painted pale
magenta. He is married. His wife was in the back seat, an irritable some-
what faded blond. She was attempting back seat driving when the acci-
dent occurred. He had turned around to make objection. In the process
the car swerved and hit the plaintiff. The sun was shining; there was a
rather lovely dappled sky low to the West. The time was late October on a
Tuesday. The road was smooth, concrete. It had been put in by the Mc-
Carthy Road Work Company. How many of these facts are important to
the decision? How many of these facts are, as we say, legally relevant? Is it
relevant that the road was in the country or the city; that it was concrete
or tarmac or of dirt; that it was a private or a public way? Is it relevant that
the defendant was driving a Buick, or a motor car, or a vehicle? Is it im-
portant that he looked around as the car swerved? Is it crucial? Would it
have been the same if he had been drunk, or had swerved for fun, to see how
close he could run by the plaintiff, but had missed his guess?
Is it not obvious that as soon as you pick up this statement of the facts to
find its legal bearings you must discard some as of no interest whatsoever,
discard others as dramatic but as legal nothings? And is it not clear, further,
that when you pick up the facts which are left and which do seem relevant,
you suddenly cease to deal with them in the concrete and deal with them
instead in categories which you, for one reason or another, deem significant.
234 KARL LLEWELLYN AND THE REALIST MOVEMENT

It is not the road between Pottsville and Arlington; it is 'a highway'. It is

not a particular pale magenta Buick eight, by number 732507, but 'a motor
car', and perhaps even 'a vehicle'. It is not a turning around to look at
Adoree Walpole, but a lapse from the supposedly proper procedure of
careful drivers, with which you are concerned. Each concrete fact of the
case arranges itself, I say, as the representative of a much wider abstract
category of facts, and it is not in itself but as a member of the category that
you attribute significance to it. But what is to tell you whether to make
your category 'Buicks' or 'motor cars' or 'vehicles'? What is to tell you to
make your category 'road' or 'public highway'?ll 7
Professor Julius Stone has refined this analysis in the context of the
well-known controversy on determining the ratio decidendi of a
case. 118 Taking the familiar example of Donoghue v. Stevenson
he has pointed out that each of the elements in the case (such as
the facts as to the agent of harm, the vehicle of harm, the defend-
ant's identity, the nature of the injury to the plaintiff, etc.) can be
stated at a number of levels of generality. For instance, the fact as
to the agent of harm can be characterized as:

dead snails
or any snails
or any noxious physical foreign body
or any noxious foreign element, physical or not
or any noxious element. 11 t
In criticizing Goodhart's 'material facts' theory of the ratio
decidendi, Stone points out that the term 'the material facts' gives
a misleading impression of some precise, fixed datum, whereas there
can be an almost infinite variety of versions of the material facts,
depending on the level of generality at which each 'fact element'
is stated. To the contention that 'the material facts' are those which
the deciding court explicitly or implicitly treated as material there
are two objections. Firstly, the same judge in a single judgment
may move at a number of different levels of generality. And,
secondly, as Llewellyn put it:
... the court may tell you. But the precise point you have up for study is
how far it is safe to trust what the court says. The precise issue which you are
attempting to solve is whether the court's language can be taken as it stands,
or must be amplified, or must be whittled down. 11 o
(ii) The Fluidity of Judicial Opinions: A critical difference between
statutes and cases, according to Llewellyn, is that whereas in the
 THE COMMON LAW TRADITION 235
case of statutes there are 'frozen words',121 the same is not the
case in judicial opinions:
Our judge states his facts, he argues his position, he announces his rule.
And lo, he seems but to have begun. Once clean across the plate. But he
begins again, winds up again and again he delivers his ratio - this tinle, to
our puzzlement, the words are not the same. At this point it is broader than
it was before, there it is narrower. And like as not he will warm up another
time, and do the same job over - differently again. I have never made out
quite why this happens. A little, it may be due to a lawyer's tendency to
clinch an argument by summarizing its course, when he is through. A little,
it may be due to mere sloppiness of composition, to the lack, typical of our
law and all its work, of a developed sense for form, juristic or esthetic, for
what the Romans knew as elegantia• ••• But whatever the reason, recurrent
almost-repetition faces us: also the worry that the repetition seldom is
exact. 188
Once again Donoghue v. Stevenson provides a good illustration.
Lord Atkin begins his speech by posing the issue in two different
ways:
... the sole question for determination in this case is legal: Do the aver-
ments made by the pursuer in her pleading, if true, disclose a cause of
action? I need not restate the particular facts. The question is whether the
manufacturer of an article of drink sold by him to a distributor, in circum-
stances which prevent the distributor or the ultimate purchaser or con-
sumer from discovering by inspection any defect, is under any legal duty
to the ultimate purchaser or consumer to take reasonable care that the
article is free from defect likely to cause injury to health.ua
The averments of facts in the pleading were more specific than their
characterization in Lord Atkin's formulation of the issue. Thus in
this passage alone Lord Atkin has moved at more than one level
of generality. However, the more general statement is in tum a little
less general in some respects than the formulation of the governing
proposition in the closing paragraph of the speech :
My Lords, if your Lordships accept the view that this pleading discloses a
relevant cause of action you will be affirming the proposition that by Scots
and English law alike a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the ultimate consumer in the
form in which they left him, with no reasonable possibility of intermediate
examination, and with the knowledge that the absence of reasonable care
in the preparation or putting up of the products will result in an injury to the
consumer's life or property, owes a duty to the consumer to take that
reasonable care. 11 '
236 KARL LLEWELLYN AND THE REALIST MOVEMENT

In this passage the agent of harm, for instance, has changed from
'an article of drink' to 'products' (in another passage it is 'articles
of common household use') 125 and the nature of the injury has
moved from 'injury to health' to 'injury to the consumer's life or
property'. This by no means exhausts the range of Lord Atkin's
movement up and down ladders of abstraction. His speech also
contains the famous 'neighbour principle' :
The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer's question, Who is my neighbour?
receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be-
persons who are so closely .and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.u•
Here, of course, Lord Atkin has moved up to a very high plane of
generality and he has been frequently criticized for this. In this
formulation, then, the nature of the agent of harm and the nature of
the injury have become immaterial. The defendant is 'a neighbour'
rather than a 'manufacturer of an article of drink', and he is liable
for either acts or omissions. Judged by the neighbour principle the
material facts of Donoghue v. Stevenson can be simply stated to be
that there were two neighbours, one of whom injured the other by
negligent conduct.
Subsequent English decisions, moving within the leeways set by
Donoghue v. Stevenson, have not accepted any of Lord Atkin's
formulations as the governing one. 121 The duty of care exists in
situations not covered by the narrower characterizations, but it is
also settled that the neighbour principle is too wide.128
These extracts from Lord Atkin's speech also illustrate the inter-
dependence of statements of the facts, posings of the issue and
formulations of potential rationes decidendi. In the first passage Lord
Atkin incorporated a statement of the facts by reference to the
pleadings, posed the issue first by reference to the pleadings and
then in his own words; in the other two passages quoted he stated
propositions of law. In each of them he is characterizing the facts
at particular levels of generality. This is simply explained by refer-
ence to the standard propositional form of any legal rule. In posing
an issue of law, the form is: if X, then Y? (or then What?). A state-
ment of the facts is 'The facts are X'; a statement of the governing
 THE COMMON LAW TRADITIO N 237
rule: 'if X, then Y'. In talking of 'levels of generality' or 'materiality'
of facts we are concerned with the mode of characterizing X. 129
Llewellyn's emphasis on 'situation sense', his advice to advocates
that 'the statement of the facts is the heart', such ideas as 'narrow-
issue thinking' and his general concern with the facts of cases are all
directly related to the idea that the categorization of facts into a
type-fact-pattern is a crucial stage in legal thinking. In case law the
lack of fixed verbal form allows some leeway in categorization of
facts and thus is the principal but not the only source of discretion
in interpretation of prior cases.

(iii) The range of legitimate techniques of interpretation: Every

common lawyer knows that there are a number of ways of dealing
with a precedent, such as following, distinguishing on the facts,
distinguishing on the pleadings, overruling, or not following. One
of the most valuable parts of The Common Law Tradition is the
discussion of such precedent techniques.180 Although many jurists
before Llewellyn had commented on the flexibility inherent in a
system of precedent, never before had this phenomenon been docu-
mented in such convincing detail; never before had its complexity
been so clearly revealed. From his samples of cases he collected a
'selection' of sixty-four distinguishable techniques. 181 There are, for
instance, four ways of 'killing the precedent':
45· Must be confined to its exact facts.
46. Can no longer be regarded as authority, since rounger v. Ollkr (Means
rounger v. Older itself was illegitimate, if consciously silent about its
effect on prior authority).
47• Involves a misapplication of the true principle (or rule).
4f3. Is (explicitly) overruled.l8 1
One of the indicia of the Grand Style is awareness and exploita-
tion of the variety of available techniques. Llewellyn's samples
clearly show that a wide variety of precedent techniques was regu-
larly employed by the state appellate courts. This provides some
evidence of a renaissance of the Grand Style and supports the con-
clusion that :
• • • the little case, the ordinary case, is a constant occasion and vehicle for creative
elwice and creative activity,for the shaping and on-going re-shaping ofour case law.1n
The section on precedents is one of the best parts of The Common
Law Tradition; its value has been well put by Becht:
238 KARL LLEWELLYN AND THE REALIST MOVEMENT

This imposing gathering of methods for dealing with precedent gains by the
fact that the author appends footnote references to illustrate each one, but
the persuasive effect comes chiefly from the fact that the reader recognizes
all as familiar, though he could not readily produce an illustration of many
of them. The author himself appeals finally to this ultimate as his best
evidence. 186 While no item in the list is unknown to a lawyer ('the neglected
beauty of the obvious') the cumulative impact of the collection, its implica-
tions about the amount of freedom that exists inside the doctrine of prece-
dent, may be quite new and may require a re-examination of his funda-
mental attitude toward both courts and law, with further implications for
his own practice. 135

Llewellyn admitted that his selection of sixty-four precedent tech-

niques was incomplete and crude.188 He made no attempt to set up
a precise taxonomy; some of his categories overlap, others are by
no means clear. He achieved his object of showing that there is a
wide range of techniques in regular use, but his work could be
carried much farther; indeed it seems that this is a topic which could
be fruitfully developed by more systematic analysis, now that
Llewellyn has pointed the way.
An important question to be considered is the relationship
between techniques of interpreting cases and the doctrine of prece-
dent. Strictly speaking the doctrine of precedent consists of rules
(and, perhaps, conventions) which prescribe what an interpreter
must, may, or can do with previously decided cases. Thus in England
the Court of Appeal must follow decisions of the House of Lords; it
may follow decisions of inferior courts, but it can instead overrule
them.187 Thus the doctrine prescribes in what circumstances
particular techniques must, may or may not be employed. Doctrine
regulates, but does not describe, practice. In the United States the
doctrine of precedent is both permissive and vague : permissive in
that there are frustrations in which a court is strictly bound to
follow the decision of another court; vague in that the border line
between 'legitimate' and 'illegitimate' precedent techniques is not
precisely defined. England, on the other hand, is famous for its
allegedly strict doctrine of precedent and much scholarly attention
has been paid to it. It is true that there are a number of rules that
prescribe that certain classes of precedent are binding: for instance,
the rule that decisions of the House of Lords are binding on all
inferior courts, or the rule, modified in xg66, that the House of Lords
was bound by its own decisions. 188 However, there is a high degree
 THE COMMON LAW TRADITION 239
of permissiveness and vagueness in the English system too: all
legitimate precedent techniques are open to the House of Lords
today and many are open to inferior courts; for instance, any court
may distinguish any decision. The English rules on precedent are
vague both on the border line between legitimacy and illegitimacy of
techniques and on the question: what constitutes the binding part
of a case?-one aspect of the much discussed problem of the ratio
decidendi. Where a doctrine of precedent is permissive or vague
or both, there is ample scope for a wide range of differences in the
practice of courts in handling prior precedents.
The jurisprudential literature on precedent has concentrated very
largely on the doctrine of binding precedent. Very little has been
said in print about the practice of precedent, even where the distinc-
tion between doctrine and practice has been observed. Since doctrine
does not describe practice such discussions tend to be lacking in
realism and, at times, even present a misleading picture. Once again,
Lord Atkin's speech in Donoghue v. Stevenson can be used to illust-
rate the point. Lord Atkin was faced with a situation in which 'the
weight of precedent' was clearly against him. Yet examination shows
that almost all the precedents discussed by him were decisions of
courts inferior to the House of Lords. 189 Thus, according to the
doctrine of precedent, it was permissible to overrule or not follow
almost all the opposing authorities. In fact Lord Atkin did noth-
ing of the sort. Instead he used a variety of techniques, some of
dubious legitimacy, to distinguish, explain away or kill the other
authorities; these techniques would have been available to him even
if all the cases in question had been decisions of the House of Lords.
Whether, if they had been, Lord Atkin (or the appellant) would have
behaved in the same way is quite a different matter. This obvious
feature of Donoghue v. Stevenson has been ignored in nearly all
discussions of the case.
Llewellyn, by concentrating on the practice of precedent, revealed
a much more complex phenomenon than most theoretical discus-
sions would suggest; at the same time, he opened up a whole field of
potential research, as yet largely unexploited, some of which might
be susceptible to quantitative techniques.

Leeways in interpretation of statutes: In his first year teaching

Llewellyn used to place great emphasis on the theme: 'You cannot
read a statute like a case'.140 Sometimes he would get the whole
240 KARL LLEWELLYN AND THE REALIST MOVEMENT

class to chant in unison: 'Never paraphrase a statute'H1 to implant

'the lesson of the frozen word'. He even expressed the idea in verse:
A statute is a piece of prose
for study most meticulous
and any solid lawyer knows
that to read 'they's' for 'these' and 'those'
is utterly ridiculous.

A statute, in both thought and word,

is semi-architectural;
and it is bad, it is absurd,
when any phrase or Act is blurred
by 'reading' that's conjectural.

The text lays out, the text you see,

unyielding, all perimeters;
though slight penumbra there must be
you'll find in force and quantity
sharp, given verbal limiters.

A 'purpose,' (on the other hand)

diffuse or categorical,
announced, implied, or radar-scanned,
is what you need, to understand
the statutory oracle.

'Purpose' was always, and remains

what lends to words all guiding spirit.
New statutes bind by their intent
old statutes by what might be meant
what else is sense or half-way near it?UB

There were, moreover, other differences between cases and statutes:

Now the essential differences between statutes and the law of case decisions
are these. A judge makes his rule in and around a specific case, and looking
backward. The case shapes the rule; the judge's feet are firmly on the
particular instance; his rule is commonly good sense, and very narrow. And
any innovation is confined regularly within rather narrow limits - partly by
the practice of trying hard to square the new decision with old law; it is
hard to keep daring innovations even verbally consistent with old rules. And
partly innovation is confined through conscious policy: case law rules
(though new) are applied as if they had always been the law; this derives
from our convention that 'judges only declare and do not make the law'.
 THE COMMON LAW TRADITION 241

Knowing that the effect of their ruling will be retroactive, and unable to
foresee how many men's calculations a new ruling may upset, the judges
move very cautiously into new ground. Then, when a case had been decided,
it enters into the sea of common law - available to any court within the
Anglo-American world, and peculiarly, within this country. Finally, and
important here, case law is flexible around the edges; the rules are com-
monly somewhat uncertain in their wording, and not too easy to make
definite. Else why your study?
But statutes are made relatively in the large, to cover wider sweeps, and
looking forward. They apply only to events and transactions occurring
after they have come into force; that element of cautien disappears. They
are, moreover, a recognized machinery for re-adjustment of the law. They
represent not single disputes, but whole classes of disputes. They are
political, not judicial in their nature, represent re-adjustments along the
lines of balance of power, decide not single cases by a tiny shift of rule, but
the re-arrangement of a great mass of clashing interests. Statute-making, too,
is confined within what in relation to society at large is a straitened margin
of free movement; but in comparison to courts the legislature is a horse
without a halter. Finally, statutes have a wording fixed and firm. And their
effect is local for the single state. You cannot reason from a statute to the
common law. The statute of one state affords no ground for urging a like
conclusion in another with no similar statute. If anything, the contrary. The
presence of a statute argues rather that the common law was otherwise in
the state of the statute- and hence everywhere. 143
Despite this stress on the differences between cases and statutes,
Llewellyn was emphatic in The Common Law Tradition that 'the
range of techniques correctly available in dealing with statutes is
roughly equivalent to the range correctly available in dealing with
case law materials' .1 u
What are the sources of this leeway? Most are familiar: the
language of a statute may be vague or ambiguous; unforeseen
contingencies may arise; there may be gaps or inconsistencies in
the text; the policy of the statute may be vague, or outdated, or
one which the court feels is unacceptable (e.g. 'a plain political
grab' 145); doubt may be occasioned by difficulty in reconciling the
statute with the main body of the law; above all, the problem
remains of classifying particular fact situations- 'do they or do they
not fit into the statutory boxes?' 146
Law, like other dogmatic systems,147 has recognized authoritative
methods for handling authoritative materials, for instance, the rules
of statutory interpretation. Ostensibly the function of these rules
is to reduce or eliminate doubt by prescribing 'correct' techniques
242 KARL LLEWELLYN AND THE REALIST MOVEMENT

of interpretation. However, it is well known that the common law

rules of statutory interpretation provide a particularly striking ex-
ample of 'normative ambiguity'- i.e. the phenomenon of 'the
tendency of doctrines of the common law to travel in pairs of
opposites' .148 With the help of two research assistants Llewellyn
provided detailed documentation of this phenomenon in an excep-
tionally vivid way. A collection of over seventy purported canons of
construction, each backed by authority, was placed into two
parallel columns, with each entry in the left-hand column countered
in the right-hand column by an entry which either contradicted or
emasculated it. For instance:
THRUST AND COUNTERTHRUST
1 'If extreme hardship will 'It is not enough merely that hard and
result from a literal applica- objectionable or absurd consequences,
tion of the words, this may be which probably were not within the
taken as evidence that the contemplation of the framers, are pro-
legislature did not use them duced by an act of legislation ..•. (I)n
literally.' Bailon v. Kemp, such case the remedy lies with the law-
92 F.2d 556, 558 (D.C. Cir. making authority, and not with the
1937)· courts.' Crooks v. Harrelson, 282 U.S.
55, 6o (1930).
2 'The two [statutes] are in pari '(T)he rule of in pari materia is re-
materia and must be con- sorted to only in cases where the mean-
strued together.' Sanford's ing of a statute is ambiguous or doubt-
Estate v. Commissioner, 308 ful.' Northern Pac. Ry. Co. v. United
u.s. 39. 44 (1939)· States, 156 F.2d 346, 350 (7th Cir. 1946).
3 'The meaning of a word A 'word may have a character of its
may be ascertained by refer- own not to be submerged by its associa-
ence to the meaning of words tion'. Russell Motor Car Co. v. United
associated with it.' Internat- States, 261 U.S. 514, 519 (1923).
ional Rice Milling Co. v.
NLRB, 183 F.2d 21, 25 (5th
Cir. 1950).
4 'Where words of a particular '[The rule] gives no warrant for nar-
or specific meaning are fol- rowing alternative provisions which the
lowed by general words, the Legislature has adopted with the pur-
general words are construed pose of affording added safeguards.'
to apply only to persons or United States v. Gilliland, 312 U.S. 86,
conditions of the same general 93 (1941). 119
kind as those specifically
mentioned •• .'. Lyman v.
Commissioner, 83 F.2d 81 I
( rst Cir. 1936).
 THE COMMON LAW TRADITION 243
Thus, according to Llewellyn, although cases and statutes are
different in nature and require different techniques of interpreta-
tion, the extent of the leeway for interpretation is broadly similar;
moreover, the role of the interpreting court is much the same whether
it is interpreting a case or a statute:
And everything said above about the temper of the court, the temper of the
court's tradition, the sense of the type-situation, and the sense of the
particular case applies here as well.
Thus in the period of the Grand Style of case law statutes were construed
'freely' to implement their purpose, the court commonly accepting the
legislature's choice of policy and setting to work to implement it. (Criminal
statutes and, to some extent, statutes on procedure were exceptions.)
Whereas in the Formal period statutes tended to be limited or even
eviscerated by wooden and literal reading, in a sort of long-drawn battle
between a balky, stiff-necked, wrongheaded court and a legislature which
had only words with which to drive that court. Today the courts have re-
gained, in the main, a cheerful acceptance of legislative choice of policy,
but in carrying such policies forward they are still hampered to some extent
by the Formal period's insistence on precise language. 1 60
Although Llewellyn assented to the proposition that American
law schools had traditionally over-emphasized cases at the expense
of statutes, in both The Bramble Bush and The Common Law
Tradition he concentrated principally on case law. His discussions
of statute law are briefer and less carefully documented. This is
particularly noticeable in respect of his treatment of the range of
techniques of interpretation: his selection of precedent techniques
was based on intensive study of a series of consecutive opinions of
particular courts; the exercise on canons of statutory construction
was not based on the study of random samples of judicial opinions
nor was it confined to specific jurisdictions. Llewellyn did take
one sample of statutory material from a single jurisdiction, Ohio
1937, but this represents a much less thorough basis for his findings
on statutory techniques than for precedent techniques, as he
acknowledged. 151

The limits of the leeways:

The last thirty-five years of Jurisprudence have made clear the quantum
of leeway to too many lawyers who will become Judges. The last thirty-
five years have not, in Law School, made clear the narrow limits of the
leeway. 111
244 KARL LLEWELLYN AND THE REALIST MOVEMENT

Llewellyn in his later writings was at pains to emphasize that discre-

tion, or, as he put it, 'leeways', are not an ali-or-nothing matter.
Discretion to interpret prior cases may be limited in practice by a
number of factors. First, and most important in this context, is the
point that typically the interpreter is faced not with an isolated
precedent but with a cluster or a series of related cases. The problem
then is to work the group of cases into a single pattern. Llewellyn
stated, perhaps overstated, the matter in The Bramble Bush:

For the truth of the matter is a truth so obvious and trite that it is somewhat
regularly overlooked by students. That no case can have a meaning by itself!
Standing alone it gives you no guidance. It can give you no guidance as to
how far it carries, as to how much of its language will hold water later.
What counts, what gives you leads, what gives you sureness, that is the back-
ground of the other cases in relation to which you must read the one. They color
the language, the technical terms, used in the opinion. But above all they
give you the wherewithal to find which of the facts are significant, and in
what aspect they are significant, and how far the rules laid down are to be
trusted. 158

There are other factors which in practice may limit the exercise of
discretion in selection of precedent techniques:

True, the selection is frequently almost automatic. The type of distinction

or expansion which is always technically available may be psychologically
or sociologically unavailable. This may be because of (a) the current
tradition of the court or because of (b) the current temper of the court or
because of( c) the sense of the situation as the court sees that sense. (There are
other possible reasons a-plenty, but these three are the most frequent and
commonly the most weighty.)lH
One final factor in limiting discretion, possibly subsumed under the
'tradition' or the 'temper' of the court, is the not very clearly defined
sense of what is decent or legitimate and what is unfair or illegitim-
ate. This was again, for Llewellyn, a matter of limited discretion:

It is silly ... to think of use of this leeway as involving 'twisting' of prece-

dent .... The phrase presupposes that there was in the precedent under
consideration some one and single meaning. The whole experience of our
case-law shows that that assumption is false. It is, instead, the business of the
courts to use the precedents constantly to make the law always a little better,
to correct old mistakes, to recorrect mistaken or ill-advised attempts at
correction - but always within limits severely set not only by the prece-
dents, but equally by the traditions of right conduct in judicial office. u 6
 THE COMMON LAW TRADITION 245
The nature of judicial discretion in interpreting cases and statutes
is such, according to Llewellyn, that judicial advancement of the
law is more by almost daily cumulative adjustment than by sudden
dramatic leaps forward. This is one of the key conclusions of the
book:
. . . For the long haul, for the large-scale reshaping and growth of
doctrine and of our legal institutions, I hold the almost unnoticed changes
to be more significant than the historic key cases, the cumulations of the
one rivaling and then outweighing the crisis-character of the other. 161

THE DESCRIPTIVE THESIS

The bulk of the Common Law Tradition is taken up with three
matters: elaboration of the conceptual apparatus, analysis of
reported cases as evidence and illustrations of the descriptive thesis,
and varying kinds of advice to participants in appellate judicial
processes and to others (the prescriptive thesis). In so far as the book
can be said to have a discernible structure, it is built around the
descriptive thesis. The present section is concerned with the ques-
tion: by what means and how satisfactorily did Llewellyn seek to
establish his conclusions? For this purpose the core of the descriptive
thesis may be restated as follows: (i) There was a crisis of confidence
in American state appellate courts in the 1950s. This crisis was not
justified because (ii) despite the leeways open to appellate courts in
interpreting cases and statutes, (iii) there are a number of factors
which promote regularity, and hence predictability, in the behaviour
of these courts, and (iv) (a) there was in this period a renaissance of
the Grand Style, and (b) the Grand Style promotes predictability
and reduces arbitrariness.
Of these propositions (i) was simply asserted without much
analysis or evidence to support it. Llewellyn amply illustrated (ii),
but he made no serious attempt to go beyond common sense in his
discussion of (iii); however, in respect of (iv) he went to immense
pains to support his thesis with evidence and argument.
Between one-quarter and one-third of the book is taken up with
detailed examination of approximately six hundred reported cases,
nearly all of them decisions of state appellate courts. 157 These
constituted almost the only evidence adduced to support the descrip-
tive thesis. Four questions about Llewellyn's method need to be
considered. First, why did he rely so heavily on reported cases?
246 KARL LLEWELLYN AND THE REALIST MOVEMENT

Secondly, did the opinions selected for analysis constitute a suffic-

iently representative sample? Thirdly, to what extent are reported
cases representative of the work of state appellate courts? And,
fourthly, was Llewellyn's mode of analysis of judicial opinions
adequate for his purposes?

Why did Llewellyn rely so heavily on reported cases?

In the first place, there is the threat of the available. This is the lesson from the
almost inevitable tendency in any thinking, or in any study, first to tum to the
most available material and to study that- to study it exclusively- at the
outset; second, having once begun the study of the available, to lose all pers-
pective and come shortly to mistake the merely available, the easily seen,
for all there is to see.u s
In law the law reports and the statutes are the most readily available
primary sources. Langdell sanctified the submission of the academic
lawyer to dominance by these sources through his frequently quoted
dictum to the effect that law is a science and that 'all the available
materials of that science are contained in printed books'.m
As a young man Llewellyn reacted against the intellectual tradi-
tion symbolized by Langdell's statement. Yet in The Common Law
Tradition he deliberately restricted himself to the study of reported
opinions. Does this represent a volte-face?
Llewellyn justified his self-denying ordinance on two grounds.
First, the law reports obviously have great advantages just because
of their availability. 160 Other sources of evidence are peculiarly
inaccessible: the conscious and unconscious thought processes of
judges, except as exhibited in their opinions, are likely for the fore-
seeable future to remain at least as sequestered as the deliberations of
jurors. Such matters as extra-judicial pronouncements and bio-
graphical details may be valuable as supplementary sources but their
potential is limited in comparison with the rich profusion of the law
reports. In the 1930s Llewellyn had tried to get some newly
appointed judges, who were former colleagues, to keep notes of their
methods of decision-making; his attempt was a failure. 161 He was
thus well aware of the practical difficulties of relying heavily on
other sources.
Llewellyn's second reason was that the law reports have great
unexploited potentialities. Lawyers, jurists and other social scien-
tists have been blind to them 'as a curiously valuable, accessible and
time-cheap fountain of instruction about life'.162 Lawyers have
 THE COMMON LAW TRADITION 247
168
tended to treat them 'primarily as repositories of doctrine'. In
The Common Law Tradition Llewellyn advocated a different
approach:
What is needed, and all that is needed, is first to read the reports for what
they are: human histories about situations which have arisen in our society
And, second, to group together for instruction - in a way which other litera-
ture rarely, in equivalent time, permits- six or a dozen or forty signific-
antly comparable histories, to be thought about together: whether in terms
of situation, or in terms of process, or along any other line. 166
This way of reading cases was not only of general educational value,
but also, Llewellyn claimed, it was the easiest way for a busy practi-
tioner to study a particular court, especially if it were working in
the Grand Style. In his last public appearance, in a lecture on appel-
late advocacy, Llewellyn urged that in preparing an argument an
advocate should start by studying the tribunal. 165 Whereas some
passages in The Common Law Tradition may seem to suggest that
reading the law reports 'properly' would be enough, in this lecture
Llewellyn made it clear that he looked on the law reports as only one
of the sources available to the practitioner for this purpose.
The point that the potential of the law reports has not been
fully exploited in the past, is not itself a good reason for using only
the law reports as source material in The Common Law Tradition.
Nor is it an answer to his own argument that concentration on the
most accessible sources is likely to produce a distorted perspective.
This point will be elaborated in connection with the next two ques-
tions.

Was Llewellyn's sample of reported cases representative? In

contrast with the selective use of cases by most writers on juris-
prudence, Llewellyn claimed that the majority of cases analysed in
the text were chosen at random.166 For his principal sample he
selected three states from each of the following regions: the east
coast, the west coast, the middle west and the centre and south-
west. In respect of each he read a sequence of cases from the most
recent available reports; all the cases in the main sample were decided
within the period I957-9· In order to test typicality he prescribed
the following procedure for himself:
For a first approach, then, opinions should as heretofore be read in sequence.
A promising first lead would be to read until four of them were found which
248 KARL LLEWELLYN AND THE REALIST MOVEMENT

overtly used situation-sense in the testing or shaping of. the rule applied,
and check how many cases one had to cover in order to turn up the four.
That would sample typicality. If, however, those four did not reasonably
sample the court's personnel, as well, further reading would be called for.
In any event, every opinion examined in the process would have to be
accounted for, so that those which proved 'positive' for our hypotheses
would fall into due perspective with reference to their frequency and
typicality. 18 7
The contemporary samples from twelve states were supplemented
by a number of others, chosen in a different manner. There were
runs of cases from earlier periods in New York in 1842 and 1939,
Ohio in 1844 and 1953, and Pennsylvania in 1944. The dates and
the sequences were again picked at random (except to ensure that
opinions by Cowen were included), but the jurisdictions were
selected on subjective criteria. Examples of the work of Mansfield
and Cardozo are also considered in detail, without any suggestion
that they are representative.
Although Llewellyn's sampling technique might seem idiosyn-
cratic to a purist, it is reasonable to assume that he eliminated 'bias'
in his selection of cases adequately for his purposes and that he
avoided falling into elementary sampling errors. He made no attempt
to quantify his findings. If anything, it might be argued that his
samples are unnecessarily extensive for the purpose of establishing
such vague conclusions as the findings that courts are frequently
resorting to situation sense or that a wide range of precedent tech-
niques is in daily use or that there is a widespread renaissance of
the Grand Style. On the basis of his samples more precise hypotheses
might have yielded 'harder' and more detailed conclusions.

To what extent are reported opinions representative of the work

of the state appellate courts? In concentrating on reported cases,
Llewellyn was almost exclusively concerned with decisions on ques-
tions of law or mixed law and fact; he was not concerned with
other types of judicial decision-making, including the equally diffi-
cult, relatively neglected, areas of fact-finding and sentencing. His
awareness sharpened by Frank's criticism, he was careful to stress
the distinction between trial and appellate courts; he refused to
talk of 'the judicial process', recognizing as he once put it, that
judicial processes 'come in Heinz varieties' ;168 he noted, but did
not stress the point, that cases taken on appeal are by their very
 THE COMMON LAW TRADITION 249
nature not representative of the bulk of cases coming before trial
courts1 e• He also noted that a majority of appellate decisions are
affirmed without opinion. He quoted Cardozo's statement that a
majority of cases in his court 'are predestined, so to speak, to
affirmance without opinion' 170 and that 'nine-tenths, perhaps
more, of the cases that come before a court are predetermined'. 171
Llewellyn's research for Praejudizienrecht had revealed that in
155 N.E. (1927) 64 per cent of appeals to the New York Court of
Appeals were affirmed and 6 per cent were reversed without
opinion,172 and he quoted the view of Justice Loughran of the same
court to the effect that 'the outcome was pretty certain about eight
times out of ten, as soon as the court got their minds around the
case, but that there was no such certainty about the ground of the
decision'.U 8
It is perhaps a little surprising that in The Common Law Tradi-
tion Llewellyn should have glossed over the implications of the
estimate that between 70 and go per cent of appeals to American
state appellate courts are foredoomed, and so, in his usage, not worth
appealing. m One of the claims for the book is that it is a realistic
study of a particular type of institution as it operates in fact. A
rounded study of the daily work of state appellate courts would
have required a detailed examination and explanation of such
estimates. In his manuscript on The Theory of Rules Llewellyn had
suggested that Cardozo's estimate supported his views about the
inadequacy of the guidance to judges and practitioners provided by
the existing rules of law, taken by themselves:
If (Cardozo's) suggestion held true •.• then one would have to settle down
to an inquiry into how a bar came to be appealing that nineV~ per cent of cases. One
could account for some as desperate chance appeals where the stake was
high; for some as bitter-ender appeals where the grudge bit deep; for some
as boob-appeals because some lawyers are incompetent; for some as booby-
trap appeals because the clients were being taken for extra fees; for some as
vexation appeals by a defendant to gain delay or by a plaintiff to work a
settlement on nuisance value. Stretching all the cynicism I can muster, I
still find it hopelessly insufficient to make such groupings over nine appeals
out of ten foredoomed as assumed. I see no choice but to tum for an
explanation to some unclarity in the rules as effectively showing the hetero-
geneous mortals who wear black robes upon the bench just what, irrespec-
tive of their personality, they are supposed to do with cases as cases arise.t7'

This theme is not pursued in The Common Law Tradition. Nor is

250 KARL LLEWELLYN AND THE REALIST MOVEMENT

there extended discussion of the relationship of the work of state

appellate courts to the work of all courts and to the total picture
of dispute settlement in general. It is taken for granted that state
appellate courts occupy a key position in this total picture. It would
not have been a work of supererogation to have tried to place this
specialized case study of the juristic method of a particular type of
tribunal in a broad context; at the very least setting the study in
perspective would have allayed any lingering suspicion that
Llewellyn himself had become a victim of the danger which he had
characterized as the threat of the available. It would also have
helped to make clear the relation of this specialized study to his
general theory of law-and-government. Furthermore, it will be
suggested later, it would have disposed more satisfactorily of the
alleged crisis of confidence than his attempts to show that the Grand
Style promotes reckonability.

Was Llewellyn's mode of analysis of judicial opinions adequate for

his purposes? Llewellyn claimed that he read his samples of
opinions in much the same way as historical documents are read
by historians. 176 He reported at considerable length on his findings.
Although the pages are enlivened by frequent incidental observa-
tions, he concentrated for the most part on indicia of the Grand
Style and the Formal Style and on the precedent techniques that
were being used by the courts. In fact in analysing the cases he was
concerned with a rather limited range of variables; he did not, for
instance, consistently have regard to factors relating to the socio-
economic status of the judges or the parties, or some of the other
factors that have been given prominence in jurimetric analysis. He
made no attempt to quantify his findings and only spasmodically
doffed his cap to systematic social science techniques. Nor did he
always distinguish very closely between data and interpretation. A
first condition of objective analysis is the establishment of precise
categories with criteria of identification which eliminate personal
judgment except in border-line cases. The limitations of 'Grand
Style', 'situation sense' and other central concepts in Llewellyn's
analysis have already been explored. When Llewellyn reads through
twelve cases from Massachusetts and reports that he finds clear use
of situation sense in at least six of them, an element of trust on the
part of the reader is still demanded even though Llewellyn gives a
brief paragraph to each case. 171 A student who goes off to read the
 THE COMMON LAW TRADITION 25I

same run of cases before he reads Llewellyn's interpretation may

well arrive at the same conclusion, but it is by no means certain that
he will. Indeed, the reader is sometimes left with a nagging suspicion
that the vagueness of the indicia of the Grand Style and Formal
Style allowed Llewellyn's subjective preferences to creep into his
analysis.
Thus despite the enormous labour put into his treatment of his
samples of cases, Llewellyn's method seems somewhat casual and
impressionistic. He is more at ease, indeed more illuminating, when
he starts 'to wander with you for a bit in a more leisurely fashion
... and smoke a pipe or two among phases of our Style of Reason at
Work'. 118 Llewellyn's principal hypotheses-that there is a renais-
sance of the Grand Style and that there is a wide range of precedent
techniques- are so vague that a systematic method of analysis was
not necessary to support them.179

The renaissance of the Grand Style: Llewellyn claimed only to have

found the Grand Style predominating in four contexts: in Roman
law of the classical period, among the Cheyennes, in the United States
in the early nineteenth century and again in the United States from
about 1940.180 The Formal Style, on the other hand, was particu-
larly marked in the period from 1870 until 1940. Thus in this inter-
pretation American state appellate courts between 18oo and 1950
went through a cycle of Grand Style dominance followed, after a
gap, by the Formal Style which was replaced again by a gradual
resurgence of the Grand Style. In respect of the first period
Llewellyn's interpretation accords with Pound's account of 'the
formative era' of American law. 181 There also seems to be a widely
held view that the state courts generally seemed formalistic and slow
to respond to the changes associated with the industrial and techno-
logical revolution that swept America at the turn of the century. 182
However, Llewellyn's periods are so broad, and the concept of a
predominating period style is so vague, that it is impossible to evalu-
ate this sweeping interpretation of American judicial history. Detailed
historical research might well reveal a more complex picture.
Llewellyn, of course, adduced extensive evidence of a widespread
renaissance of the Grand Style. Prima facie this evidence is convinc-
ing. However, the extent of the spread is not precisely assessed;
moreover, a number of individuals have expressed scepticism about
the matter. Wetter, for instance, found evidence of judicial
252 KARL LLEWELLYN AND THE REALIST MOVEMENT

decadence ;m Mermin has doubts about the applidtbility of the

thesis to Wisconsin; 184 MacNeil suggests that the Grand Style may
have been more marked in some fields (like labour law and constitu-
tional law) than in others: 'If you drove your weary way through
the opinions of the New York Court of Appeals on contract cases,
or almost any court on cases involving the parole evidence rule, you
would find that the formal style flourishes like ragweed.' 18 G Breitel
and others have voiced similar doubts which could only be resolved
by careful testing of hypotheses more detailed and precise than
Llewellyn's.188
A seemingly important part of Llewellyn's thesis is the proposi-
tion that when the Grand Style predominates prediction is easier.
However, this claim is carefully circumscribed. The Grand Style is
listed as only one of fourteen major steadying factors which combine
to promote reckonability. The standard is the reckonability of 'a
reasonable, sometimes a very good, business risk',187 well short of
complete 'certainty'. It is the outcome of the case which is being
predicted, not the grounds for the decision. 188 The base line for
prediction is when the trial is over, pending appeal; by this time
the facts are settled, the appellate court, the issues, the opposition,
etc. are known. 189 In short, the claim is little more than that the
Grand Style is one of the factors which offer guidance to the coun-
sellor as to the advisability of pressing an appeal.
Llewellyn did not try to test the claim empirically, but he did give
some reasons in support of it:
••• first, the Grand Style is the best device ever invented by man for drying
up that free-flowing spring of uncertainty, conflict between the seeming
commands of the authorities and the felt demands ofjustice. Second, when a
frozen text happens to be the crux, to insist that an acceptable answer shall
satisfy the reason as well as the language is not only to escape much occasion
for divergence, but to radically reduce the degree thereof.•.. 110 Third, the
future-directed quest for ever better formulations for guidance, which is
inherent in the Grand Style, means the on-going production and improve-
ment of rules which make sense on their face, and which can be understood
and reasonably well applied even by mediocre men. Such rules have a fair
chance to get the same results out of very different judges, and so in truth
to hit close to the ancient target of'laws and not men'. 181
Such assertions apart, Llewellyn based the claim on two arguments,
which may be termed respectively the a priori argument and the
ex post facto argument. The a priori argument can be restated
 THE COMMON LAW TRADITION 253
as follows: a case is not worth appealing (or contesting on appeal)
unless there is a doubt about the law. A doubt about what the law is
cannot be resolved by the authorities alone. 192 Accordingly it can
only be resolved by resort to other considerations, such as justice,
policy, and situation sense. In a Grand Style justification such other
factors are openly discussed; in a Formal Style justification they
are not; instead there is merely a pretence that the doubt is resolved
by the authorities. Accordingly the Grand Style provides a more
reliable basis for prediction because it gives a more complete
account of the factors actually influencing decision than does the
Formal Style. Furthermore, when such factors are treated openly
they are likely to influence decisions in a more regular manner
('covert tools are unreliable tools').193
Except, perhaps, for the last sentence, which is speculative, the
reasoning seems valid, subject to two important caveats. First, the
argument assume~ that the existence of a legal doubt is a constant.
This is a questionable assumption, for people can disagree as to
whether or not there is a doubt. For instance, it is not uncommon to
find one party maintaining that the meaning of a statute is clear,
while his opponent contends the opposite. Such disagreements are
difficult to resolve as there is no clear consensus about the answer
to the question: 'Under what circumstances is it true to say that a
legal doubt exists?' One possible answer is that a legal doubt exists
when lawyers in fact disagree as to what the applicable law is, but
this is not very helpful since it is typically part of the job of lawyers
to disagree when they are representing opposing parties. Alterna-
tively one can say that a legal doubt exists when a technically good
case can be advanced by each side. This would seem to be
Llewellyn's meaning, for it relates directly to his thesis concerning
the leeways available in interpreting cases and statutes. But 'a tech-
nically good case' is a relative term, for clearly some arguments
based on authority are stronger than others. For instance, in
Donoghue v. Stevenson the weight of precedent clearly favoured the
original defendants (the manufacturers); in justifying their decision
in favour of the original plaintiff Lord Atkin and his colleagues
concentrated a major part of their efforts on establishing a legal
doubt by explaining away authorities and showing that they did
not necessarily support the defence. The persuasiveness of their
justification in its positive aspects derives mainly from arguments
appealing to situation sense and justice, rather tenuously backed
254 KARL LLEWELLYN AND THE REALIST MOVEMENT

by authority. In short Donoghue v. Stevenson can be seen as the

victory of a possible but weak technical case, backed by 'non-
legal' factors, over a relatively strong technical case.
Once it is recognized that the existence of a legal doubt can itself
be a matter of controversy, the scope of the a priori argument is
reduced. For the difference between the Grand Style and the Formal
Style is no longer seen to be solely as a difference in the manner of
justification of decisions in which all are agreed that there was a
legal doubt. A Grand Style judge, because he is more responsive to
non-legal factors, may be more likely to argue that there is a legal
doubt than a Formal Style judge. Thus a major part of Lord Atkin's
achievement in Donoghue v. Stevenson was that he was prepared to
respond to a challenge to what had previously been regarded as well-
settled law by the great majority of the legal profession. The
achievement of the plaintiff's lawyers was to establish the doubt as
much as to resolve it. The a priori argument does not apply to such
cases; indeed, one may ask whether it can seriously be contended
that Lord Atkin's conclusion in Donoghue v. Stevenson was more
predictable than Lord Buckmaster's or, in general terms, whether
the behaviour of judges known to be bold is more or less predict-
able than those who are known to be timorous souls. m The a priori
argument begs such questions.
The second caveat to the a priori argument may be even more
important. The argument, as stated above, only relates to the
conclusion that the Grand Style promotes reckonability in respect of
cases worth appealing. 195 Indeed, in at least one passage Llewellyn
seems to admit that in less puzzling cases a Formal Style court may,
'by giving the more familiar an edge up on the wise', possibly behave
more predictably than a Grand Style court. 196 Since Llewellyn
took the view that probably only between 10 per cent and 30 per cent
of cases in fact appealed were worth appealing, the a priori argu-
ment refers to a minority of cases coming before appellate courts,
and these by their nature the least predictable. Presumably in respect
of cases clearly not worth appealing the style of the court would
make little or no difference to the predictability of the outcome. In
cases marginally worth appealing, Llewellyn conceded that the
Formal Style might promote predictability at the expense of
wisdom. 197
This caveat is important when considered in relation to the crisis
of confidence. To show that it was unjustified, Llewellyn's strongest
 THE COMMON LAW TRADITION 255
point (though unproven and understressed) should have been that
the great majority of appeals are doomed irrespective of whether
the court employs the Grand Style or the Formal Style. If the two
caveats are taken together it appears that the argument that the
Grand Style promotes reckonability (itself less than certainty) only
applies to a small minority of cases taken on appeal and so is of
marginal relevance to the crisis of confidence in so far as that is
based on a feeling that the behaviour of appellate courts is
unpredictable.
These caveats are of particular significance in relation to one of
the standard criticisms of legal realism, viz. that the rule sceptics
exaggerated the ambiguity of legal rules and the range of creative
choice open to judges, because they failed to stress that most rules
have 'a central core of habitually established content surrounded
by a penumbra of doubtful cases'.198 Such criticism, echoed by Hart,
Cardow and others, does not apply to Llewellyn, because he was
not talking about rules in all contexts but about rules in the context
of appellate cases worth appealing.199 There is a certain irony in
the fact that Llewellyn, along with other realists, was regularly
accused of laying too much stress on uncertainty in law, whereas
the thrust of his argument in The Common Law Tradition was that
even in the most doubtful cases reasonable reckonability is attainable.
The ex post facto argument : Llewellyn did not claim that his
samples of cases provided direct evidence of the proposition that the
Grand Style promotes reckonability. But he did maintain that Grand
Style decisions tend to generate after the event recognition of the
rightness, sometimes even of the inevitability, of the result. 200 Talk
of 'recognition' in such circumstances and of the 'wisdom ~f hind-
sight' stirs a responsive chord in many people. Such talk is not
nonsensical, for it is rooted in experience; but the psychological
state may be more complex than the language suggests. Llewellyn
argued that the orthodox demand for certainty in law was often a
disguised demand for this kind of ex post facto recognition:
What is then needed is men - a bench - right-minded, learned, careful,
wise, to find and voice from among the still fluid materials of the legal sun
the answer which will satisfy, and which will render semisolid one more
point, as a basis for a further growth. And the certainty in question is that
certainty after the event which makes ordinary men and lawyers recognize as
soon as they see the result that however hard it has been to reach, it is the right
result. Then men feel that it has therefore really been close to inevitable. lot
256 KARL LLEWELLYN AND THE REALIST MOVE,MENT

A feeling after the event that a decision was 'inevitable' because it

is felt to be right has no necessary connection in logic or in fact with
the claim that the decision was predictable in advance. Accord-
ingly it is by no means clear that Llewellyn convincingly proved his
optimistic contention that 'satisfying' decisions are more predictable
than others. Julius Cohen makes the point:
And what of Llewellyn's claims of predictability? His hypothesis that such
'sense' is a predictable judicial phenomenon in leeway situations seemingly
would have had greater weight had he posed the problem of 'sense' to law-
men before the judicial decisions, and tested the accuracy of their reactions
later against the finished decisional product. How many lawmen, for ex-
ample, would have sensed the 'gQOCi sense' of Palsgraf before the case was
decided, and could have predicted its outcome at that time? Llewellyn's
experiment in intersubjective reactions was not structured to account for
this time variable. Instead, it attempts to assess now on the basis of the bias
and conditioning of hindsight. Better than 1\his for a testing of this hypothesis
would have been an insistence on the freshness offoresight. 101
The crux of the matter is that the ex post facto argument is best
treated as not being an argument about prediction at all. It essen-
tially involves the assertion that the Grand Style is more likely to
satisfy people's feelings as to what is just and appropriate than the
Formal Style, both in respect of results and of their justification.208
Interpreted thus, it has a direct bearing on the crisis of confidence,
in that confidence in the courts rests at least as much on their keep-
ing reasonably in step with public and professional opinion as on the
predictability of their behaviour. Moreover, it is reasonable to infer
from many passages that Llewellyn's enthusiasm for the Grand
Style Was only marginally related to the proposition that it might
increase reckonability. This was, as it were, a bonus. Thus a close
examination of The Common Law Tradition suggests that it has
rather less to say about prediction than at first sight appears.

The descriptive thesis: conclusion

The descriptive thesis may have provided a convenient peg on which
to hang a number of general ideas about judicial processes, but the
thesis itself does not carry conviction. The crisis of confidence is
merely asserted to exist and is not very carefully diagnosed; the
discussion of the steadying factors is not confined to American state
appellate courts in the xgsos, and is based on common sense impres-
sions rather than evidence; neither the renaissance of the Grand
 THE COMMON LAW TRADITION 257
Style nor the propensity of the Grand Style to promote predict-
ability is established beyond reasonable doubt. Moreover, even if the
descriptive thesis is accepted as proven, its conclusions are too vague
to be of much value. Fortunately, the significance of The Common
Law Tradition is only marginally dependent on the validity of
the descriptive thesis. The detailed analysis of hundreds of cases may
be of limited value as evidence, but it does provide some admirably
concrete illustration and explanation of some rather elusive ideas.
It is in these ideas rather than in the historical conclusions that the
chief value of the book lies, and concreteness of illustration is one
of its cardinal virtues.

THE PRESCRIPTIVE THESIS

The prescriptive thesis is concerned essentially with method and
consists largely of advice to all those connected with appellate court
work on how to approach their respective tasks. The basic prescrip-
tion is 'adopt the Grand Style'. Llewellyn spells out the implications
of this for the judge, the advocate, the counsellor and the scholar
in the form of advice of varying length, concreteness and style. The
scholar is only directly addressed in one section of nine pages and in
a few asides ;204 the counsellor is accorded little more than three
pages: 20 G the advice to appellate advocates is summed up in twelve
precepts, a twenty page nutshell of 'The ABC's of appellate argu-
ment',206 the judiciary is counselled less peremptorily in nearly
one hundred and fifty pages of 'conclusions for courts', a discursive
review of more than twenty loosely related topics. 207
To some extent these differences reflect the relative importance
of the various participants in achieving the goals of right decision
and wise law-making; moreover the roles of these various function-
aries overlap without being co-extensive. Their viewpoints may be
different, but they are involved in a single process. Although
Llewellyn did not spell it out in a systematic manner, it is not diffi-
cult to piece together his conceptions of the various roles and their
interrelationships. The appellate judge has a dual duty: the duty
to decide the particular dispute in accordance with law and justice
and the duty to contribute to the development of the law. 20 8 This
latter duty is done principally through his reasoned justification for
his decision. The advocate also has a dual duty : to advance his
client's case, but only in so far as this is consistent with his duty to
258 KARL LLEWELLYN AND THE REALIST MOVEMENT

truth and justice and the ethics of his profession. His main task is
persuasion. 209 The roles of judge and advocate overlap in so far as
what constitute good reasons for the purpose of persuasion should
also constitute good reasons for the purpose of justification. A good
brief should be almost identical in substance with a good opinion,
although certain practical exigencies may demand some differences
in style of presentation. Llewellyn even advises advocates to include
in their written brief a carefully phrased passage which may be
adopted by the court as its own:
If a brief has made the case for what is right, and has made clear the reason
of the rightness, and has found and tailored and displayed the garment of
law to clothe the right decision fittingly, then it is not only unwise but
indecent not to furnish also in that brief a page or two of text which gathers
this all together, which clears up its relation to the law to date, which puts
into clean words the soundly guiding rule to serve the future, and which
shows that rule's happy application to the case in hand. What is wanted is a
passage which can be quoted verbatim by the court, a passage which so
clearly and rightly states and crystallizes the background and the result that
it is recognized on sight as doing the needed work and as practically demand-
ing to be lifted into the opinion. no
Just as the roles of advocate and judge coincide without being co-
extensive, so too do the roles of advocate and counsellor. One such
overlap concerns prediction. It is necessary here to distinguish
between prediction of outcome and prediction of other matters.
Typically an appellate judge is not concerned with prediction of
outcome: it borders on the ridiculous to talk of predicting one's own
decisions; and the judge is only marginally concerned with predict-
ing the decisions of other tribunals, except perhaps in respect of the
possibility of reversal on appeal. It may be that appellate judges
should be concerned with possible consequences of their decisions
on the behaviour of people concerned, and even of possible conse-
quences of advancing a particular justification,211 but it is fair to
say that prediction is not central to the role of judging. Similarly
an advocate, acting as advocate, is not primarily concerned with
predicting the outcome of the case he is arguing. His principal func-
tion is persuasion. 212 However, as Llewellyn continually emphas-
ized, the advocate is trying to persuade a particular tribunal. Accord-
ingly he has to predict the likely response of each of its members to
any particular line of argument. Where the facts and the issues are
settled and the composition of the court is known, he has a much
 THE COMMON LAW TRADITION 259
more concrete basis for making predictions than the counsellor
advising at an earlier stage in litigation or in the rather different
situation of drafting a document or giving 'preventive' advice of
some other kind.
Prediction is central to the role of the counsellor, but his circum-
stances are different from those of the advocate:
He is not like the person pressing for legislation, who must often push out to
the limit of the feasible and risk pushing beyond; in that area you get what
you can get while the legislative getting is good. In sharp contrast, office-
counsel can in all but rare circumstances play well inside any penumbra of
doubt; he can work, like an engineer, with a substantial margin of safety;
he can chart a course which leaves to others the shoal waters and the
treacherous channels. For unlike the ordinary advocate, the counselor need
not take the situation as it comes, but can shape and shore it in advance; he
can draft documents and set up lasting records against the accidents of
memory, death, or disappearance of witnesses, even to some extent against
the hazard of bad faith - doubly so if he keeps his protective drafting within
those bounds of reason which make a court want to give effect to manifest
intent; trebly so if he sets a picture of situation and purpose which can
appeal even to an outsider as sensible, reasonable, and inherently probable -
and it is comforting how much of this last can be gotten by careful counsel
into documentary form. Besides (or perhaps first), office-counsel are in
peculiarly good position to study and discriminate among rules and rulings
with reference to how strong and solid any of them is, how much weight it
will carry, how far the relevant type-situation is already at home in judicial
understanding or is of a character to find a ready welcome. After such
discrimination, it is on the rocklike law-stuff that the sane counselor does his
building. Finally, wherever advising counsel can rely on being able to
control any relevant litigation, another vital contingency is set to dwindling. tu

Llewellyn dealt rather cursorily with the role of the scholar.m

In respect of appellate courts he saw his distinctive role as that of
systematization. He is 'today's appointed apostle of order in legal
doctrine'. m As such he is the natural ally of the judge in his role
of improving and bringing order and clarity to the law. 218 In this
capacity both are concerned with a broader perspective than the
advocate or the counsellor, tied to the immediate interests of indi-
vidual clients. Thus the judge has a focal position·, as he alone is
regularly concerned with the particular and the general simultane-
ously.
This in outline is Llewellyn's picture of the interrelated roles of the
main functionaries concerned with the appellate judicial process.
260 KARL LLEWELLYN AND THE REALIST MOVEMENT

Although in general his ideas reflect the relative importance of the

various parties, his treatment of them is uneven and less than
systematic. The advice to counsellors and scholars is cursory and
some relevant parties, notably the legislator, are given no direct
guidance. Nearly all of the detailed advice is directed to advocates
and judges.

Appellate advocacy-The art of making prophecy come true'

Llewellyn summarized the implications for advocates of the theory
of the Grand Style under twelve heads. These represented a distilla-
tion of years of thought, matured principally through his courses on
legal argument. 211 In The Common Law Tradition he confined
himself to what he considered to be basic- 'the ABC's of appellate
argument'. What follows is an epitome of an epitome. The
starting-point is to study the relevant court; 'The target is the
particular tribunal'. 218 If the court or its composition is unknown
an appeal is more risky, which should influence the decision whether
or not to appeal. 219 A technically good case 'in law' is not enough
to win a case worth appealing, but a technically good case is neces-
sary.220 Any technically good case presupposes some classification
of the facts; the manner of presentation of the facts is crucial as a
vehicle for catching interest, posing the issue favourably, and for
laying the basis for a coherent, concentrated argument: 'the state-
ment of facts is the heart':
It is trite, among good advocates, that the statement of the facts can, and
should, in the very process of statement, frame the legal issue, and can, and
should, simultaneously produce the conviction that there is only one sound
outcome. 111
The facts should be presented as an example of a type, as a simple
pattern, with the sense of the type-situation taking priority over
'fire-side equities'. 222
The crux of the matter, according to Llewellyn, is to make argu-
ments from sense, justice and the law combine to support the same
conclusion:
The real and vital central job is to satisfy the cou~t that sense and decency
and justice require (a) the rule which you contend for in this type of situation;
and (b) the result that you contend for, as between these parties. You must
make your whole case, on law and facts, make sense, appeal as being obvious
sense, inescapable sense, sense in simple terms of life and justice. If that is
done, the technically sound case on the law then gets rid of all further
 THE COMMON LAW TRADITION 26I

difficulty: it shows the court that its duty to the Law not only does not
conflict with its duty to Justice but urges to decision along the exact same
line. 818
One concern, only touched on casually in The Common Law
Tradition but frequently discussed by Llewellyn in other contexts,
was what he termed 'the ethics of argument' .224 Lawyers are
familiar with the potential conflict between an advocate's duty to his
client and his duty to truth and justice, epitomized by his status as
'an officer of the court'. In the United States canons of professional
ethics and conventions of etiquette tend to be either silent or vague
on the limits of decency in argument, to use Llewellyn's term. He
had definite personal views which often went beyond and sometimes
conflicted with the A.B.A. Canons of Ethics. 225 He summarized his
overall position as follows :
(1) all law and all the works oflaw and oflawyers have a single dominant
function: the pursuit of justice; and
(2) that in view of the fact that law is administered by men, who must be
persuaded, if they are to further Justice by their administering, it becomes
legitimate, proper, necessary, laudable, in aproper cause, for the advocate
to resort to sophistry gross or insidious, and to evocation of emotion or
prejudice, to get the result; but
(3) that he will indulge either dishonest thinking, or the building of a case
on passion, at risk of his own soul. u a
Although Llewellyn concluded that the matter was primarily one
for the conscience of the individual advocate, he was quite specific
in his approval or disapproval of certain practices. To an English
lawyer he would appear to push the limits of decency rather far
and to be prepared to condone rather too readily the uninhibited
pressing of a client's cause, if the cause is considered to be just:
It is, for instance, indecent (to my mind) to miscite a case to the court. I
have little ethical quarrel, in a good cause, with omitting citations.... Again,
it is to my mind indecent to distract a jury's attention from the argument
being made by one's opponent, when that argument is fair. It is indecent to
misquote the record. It is indecent to offer testimony known to be per-
jured. II?
Even on this latter point he was prepared to enter some controver-
sial caveats.
Llewellyn's treatment of the ethics of advocacy may help to clarify
one minor puzzlement about The Common Law Tradition. This
is the distinction between legitimate and illegitimate precedent tech-
262 KARL LLEWELLYN AND THE REALIST MOVEMENT

niques. 228 It will be recalled that in discussing the leeways of

precedent Llewellyn listed a selection of sixty-four different tech-
niques he had collected from actual cases. Most of these he stated to
be 'legitimate' or 'impeccable', a few he branded as 'illegitimate'. Just
as the Canons of Ethics tend to be vague on questions of the limits
of decency in argument, so the doctrine of precedent provides very
little precise guidance on the legitimacy of particular precedent
techniques. Llewellyn points out that the use of techniques is
controlled by the prevailing craft tradition, 229 but his own demon-
stration of the variety and flexibility of actual practice supports the
view that there is scope for differing opinions about the 'legitimacy'
of this or that technique. Whereas Llewellyn emphasized that his
judgments on the decency or otherwise of particular tactics in
advocacy represented merely his own personal opinion, he was less
explicit about his confident labelling of particular precedent tech-
niques as legitimate or illegitimate. Yet it would seem that the latter
is just as much a matter of personal opinion, no more, no less, than
the former. To have made this clear would not have invalidated
Llewellyn's thesis and might have eliminated a source of potential
misunderstanding.
In The Common Law Tradition Llewellyn outlined a working
theory for appellate advocacy. He was not attempting to write a
how-to-do-it manual. His advice differs from that to be found in
such manuals not so much in its conclusions as in its foundations. 280
In lieu of an anthology of unrelated do's and don'ts garnered
principally from 'experience', he makes suggestions for an integrated
approach based on his conception of the Grand Style. Llewellyn's
advice is quite specific, but it is also clearly related to a general
theory and this makes for both consistency and simplicity. Thus
'situation sense' provides a theoretical base for the precept that 'the
statement of facts is the heart,281 similarly the 'principle of concen-
tration of fire' is directly related to the idea of harmonizing law and
justice in the Grand Manner ; 282 so too with other specific, mundane
precepts.
Llewellyn's treatment of legal argument thus provides a suitable
testing ground for the general claim that his approach fostered the
integration of theory and practice. In this context the claim rests on
two principal ideas: first, that command of a skill presupposes
understanding of the context of the exercise of the skill-in the
case of advocacy this would include understanding of the nature of
 THE COMMON LAW TRADITION 263
the arena and the process involved, and of the raw materials,
(such as the sources of law), on which the skill is to be exercised.
Secondly, that what constitutes good advocacy is to some extent
susceptible of analysis and articulation; it is not solely a matter of
intuition, innate flair and art picked up or developed ineffably
through experience. In other words skill presupposes understand-
ing and is teachable beyond the point of a few rules of thumb.
It is suggested that the value of Llewellyn's working theory of
appellate advocacy depends on the answers to three questions: is
the advice sound? Is it usable? Is it likely to lead to better advocacy
(does it add anything?)? The author is neither a practising
advocate nor an American and is not in a position to attempt to
give a full answer to these questions. However, some preliminary
observations may be advanced. As to soundness: Llewellyn
purported to derive his ideas in part from analysis of the practice
of advocates he particularly admired. 218 What constitutes excellence
in advocacy is to some extent a matter of opinion, but Llewellyn's
selection of 'great advocates' represents a widely shared view. A
theory based on analysis of admired practice is less likely to be 'un-
sound' than an a priori theory, provided the analysis is valid.
Secondly, in content Llewellyn's advice does not differ fundament-
ally from that to be found in leading American handbooks on
advocacy, such as Wiener's Effective Appellate Advocacy. 28'
Thirdly, experienced practitioners who reviewed The Common
Law Tradition appear for the most part to have approved
Llewellyn's ideas, some with marked enthusiasm. 284 These points
suggest that a prima facie case can be made for the soundness of
Llewellyn's advice.
The next questions cannot be answered so confidently. Llewellyn's
claims are modest. He emphasized that his advice was elementary
and incomplete. His concern was to communicate, to 'a wide variety
of lesser men', what the leaders of the profession already know, even
if they have failed to articulate it. 236 On the whole, the advice,
although general, is quite capable of application. It is not vulnerable
to a common charge of men of affairs against theory, viz. that it is
too vague to be useful. Without research of a rather difficult kind
one can only conjecture about the claim that formal teaching of
advocacy or provision of an articulate working theory is likely to
make a significant difference to standards of advocacy. Like most
other contemporary teaching it remains largely a matter of faith. 287
264 KARL LLEWELLYN AND THE REALIST MOVEMENT

At the very least it can be argued that this claim is as plausible

as most other claims made for law teaching.

Conclusions for courts

Whereas his advice to advocates is reduced to a few elementary
propositions, Llewellyn's 'conclusions for courts' are discursive and
defy summary. A general injunction to the judiciary to be wise, up-
right, balanced and se~sible sounds vapid when divorced from the
mass of detailed illu~tration that accompanies it. 288 In The
Common Law Tradition this advice is concretized in a variety of
ways: through exploration of the concept of the Grand Style;
through analysis of the methods of individual judges who are held
up as models, such as Mansfield, Cardozo, Rutledge, Cowen and
Hough ;239 and through consideration of a variety of specific topics,
from prospective overruling to the uses of law clerks and amicus
briefs. The gist of Llewellyn's general advice to judges has already
been considered in the sections on 'style' and 'situation sense'. His
opinions on the various topics he deals with are interesting, but they
are for the most part less directly connected with his general theory
than is his advice to advocates; they do not need a commentary
and there is no substitute for reading them in the original.

Comparative analysis of judicial opinions

Although not explicitly part of the prescriptive thesis, another
application of The Common Law Tradition deserves attention.
Llewellyn used to set exercises in elementary analysis of style
as part of his jurisprudence course in Chicago. Typically each
student had to select at random three volumes of law reports from
one jurisdiction (normally the student's home state) representing
three different periods in the previous 150 years. He was required
to read in each volume the first roo-150 pages of judgments of the
same court and to ask himself to what extent a distinctive style was
discernible for the period. I remember this as one of the most illumin-
ating exercises I was ever set to do as a student, despite the vague-
ness of our instructions. Certain differences between the phenomena
to be compared were so obvious and so striking that no refined
apparatus of analysis was necessary for the principal lesson to be
learned. This lesson was that there is more than one way of reading
the law reports, and that if one approaches them in the manner of a
historian reading historical documents (and this clearly allows for
 THE COMMON LAW TRADITION 265
a variety of approaches), one can learn a great deal about the courts
as institutions and about the enormous variety that is discernible in
respect of numerous variables. Even in the course of this elementary
exercise a whole range of lines of enquiry suddenly became
apparent; for instance: questions about the nature and value of the
cases coming to that court; questions about the characteristics of the
parties and their representatives; questions about the education,
careers, attitudes, and role conceptions of the judges; questions
about the extent and nature of the authoritative source material
thought to be relevant; 240 questions about the techniques employed
in handling the material; and questions about more elusive matters,
such as one's impressions of the fairness and impartiality and sound-
ness of the personnel of the court. Much of this is elementary and
obvious. Yet, and this was the crux of the matter, such questions
were touched on interstitially and unsystematically, if at all, in the
standard discussions of 'precedent', 'case law' and 'the judicial
process'. If they were obvious, they had often been neglected.
The first attempt to develop this kind of stylistic analysis in a
systematic manner was undertaken at Chicago by a Swedish doctoral
student, J. Gillis Wetter, with Llewellyn and Rheinstein as his super-
visors. Wetter's research culminated in a book, The Styles of
Appellate Judicial Opinions, A Case Study in Comparative Law,
published in 1g6o.m Wetter expounded a general theory of styles,
largely based on the intensive analysis of just under forty cases,
selected from Sweden, Germany, Arkansas, California, England,
Canada and France. The opinions are quoted in full in their original
language, except that those from Sweden have been translated into
English. Thus, independently of the exposition and commentary,
the book serves as a convenient anthology of opinions from six
jurisdictions. Although the sample cannot be claimed as repre-
sentative, it provides a striking illustration of the variety of judicial
styles. The style of Wetter's own contribution is also unusual-not
least in its attempt to work Llewellyn's inspiration into a formalized
general theory in the continental manner. m
Wetter's book, as he himself emphasizes, only marks a modest
start. 248 The possible field of enquiry is extensive, at least encom-
passing all courts from which reportable opinions emanate.
Comparison may be made between different courts within a single
jurisdiction and between courts in different jurisdictions; where
there is a practice of signed opinions,z'' comparison may be made
266 KARL LLEWELLYN AND THE REALIST MOVEMENT

between the styles of individual judges. Similarities and differences

may be explored in relation to a wide range of characteristics. The
search for explanations of similarities and differences may be a route
to profound insights about the nature of judicial processes and of
courts as institutions.

APPRAISAL
When The Common Law Tradition was first published in America
it attracted what was probably unprecedented attention for a work
of jurisprudence; yet not one review appeared in a British legal
periodical. The American reviewers were almost unanimous in their
enthusiasm. Some of the praise can be discounted as loyal and
gracious eulogy, substituting for a festschrift; some detractors may
have remained tactfully silent. However, most of the praise seems to
have been genuine. There were only three weighty dissents: Philip
Kurland, a colleague of Llewellyn's at Chicago, published a mock-
ing review that was witty, hurtful and unspecific. 243 Mark de Wolfe
Howe penned a scathing attack, stemming largely from aesthetic
disdain for the prose style; this was to have appeared in a
symposium, but Howe withdrew it on learning of Lewellyn's death
in February 1962.246 The most fully argued critique came from a
close friend, Charles E. Clark, who in collaboration with David
Trubeck maintained that Llewellyn had betrayed the cause of
legal scepticism by under-emphasizing the part played by personal
or subjective factors in judicial decision-making. 247 The great
majority of reviewers confined themselves to relatively minor doubts
and criticisms, while hailing the book as a major contribution to
jurisprudence.
Nevertheless, reading between the lines of the reviews, one can
sense an undercurrent of disappointment. This is confirmed by
numerous informal discussions with American law teachers and by
the modified rapture of discussions of The Common Law Tradition
which were published after the first rush of enthusiastic reviews. 248
Ten years after its first publication one gains the impression of a
fairly widespread consensus among Karlophiles: a major work,
but by no means the masterpiece that Llewellyn had hoped it would
be.
If this judgment is sound, it verges on the tragic. Of all Llewellyn's
books The Common Law Tradition involved the greatest investment
 THE COMMON LAW TRADITION 267
of time, effort and emotion. It became a focal point for many of his
ambitions at the end of his life. Some of its faults are probably
attributable to this. The Common Law Tradition was to be his
magnum opus; in it lay his best hopes for overdue appreciation of his
contributions as a jurist; it was to be an epitome of his ideas on
judicial processes, with little left out. It was to be both scholarly and
useful, novel and sound. The hurtful stigma of the irresponsible
iconoclast must be erased, so the work must be balanced and respect-
able; yet the essential validity of his early 'realism' must be
affirmed. 24&
Llewellyn's anxiety is also apparent in his indecision about his
readership. The principal addresses are ostensibly the bar, who need
to have their faith restored in the appellate courts. 230 He protests,
too often to carry conviction, that he is only concerned to articulate
'the neglected obvious', elementary and unrefined, so that what is
intuitively grasped and acted on by the best lawyers may be made
available to the second rate and to the beginner. The manner of
presentation belies the claim. It is absurd to maintain that The
Common Law Tradition is either elementary or easy. Few readers
have found it so, despite the relative simplicity of the central thesis.
How many practitioners can be expected to take seriously the
contention that five hundred and sixty-five pages of jurisprudence
is meant for them? Llewellyn's repeated disclaimers of refinement
indicate that he was all too conscious of the critic looking over his
shoulder; the specialist jurist on the look out for imprecision and for
further realist 'howlers'; the sceptical fellow-scholar, requiring to be
satisfied by the evidence; and the social scientist, suspicious of
'common sense' and of non-quantitative techniques.
The Common Law Tradition represents an enormous investment
of work as well as of emotion. The variable effects of the investment
are apparent in the structure and in the prose. Both are over-
wrought, the prose has some redeeming features, the arrangement
has few, if any. Discussion of method appears in the middle of
presentation of evidence; that evidence is not collected together in
one place, nor is analysis of the conceptual apparatus; at times the
book looks more like an anthology of ideas and opinions than a
single coherent whole. There is some unnecessary repetition. There
is a marked unevenness in the treatment of similar topics. 231 In
short, in respect of structure the book is undisciplined. This lack of
discipline may be in part a function of over-anxiety to leave nothing
268 KARL LLEWELLYN AND THE REALIST MOVEMENT

unsaid and to provide copious documentation of the main argument.

Between one-quarter and one-third of the book is taken up with
'evidence' and illustrative material. This gives an admirable
concreteness, but it does not make for easy reading.
The book is further complicated by being made to revolve around
the alleged crisis of confidence on the part of the bar; Llewellyn
neither documents nor analyses this phenomenon. It has little bear-
ing on the main thesis, except perhaps as a rhetorical device for
catching interest by pinpointing a sharp contrast between the main
conclusions (viz. there is a renaissance of the Grand Style) and a
supposedly widely held belief. The principal themes of the book are
not dependent on the beliefs or the morale of the bar at a particular
moment of time. The purpose of making the book appear to pivot
on the crisis was to catch the attention of practitioners and judges.
Llewellyn's concern to identify with practitioners and judges may
help to explain, if not to justify, this apparently perverse arrange-
ment. One effect was to create a serious imbalance by making a
transitory and ill-defined phenomenon the focal point of a work
that was meant to be of lasting value and wide significance.
Another weakness of The Common Law Tradition is the eccentric
methodology; judged by basic social science criteria it falls short of
accepted standards: the principal categories are elusive, the hypo-
theses are vague and are not clearly expressed in verifiable form,
data are not consistently separated from interpretation, the samp-
ling is idiosyncratic, and the findings are not presented in orderly
fashion. While some of the principal conclusions about predictability
are asserted rather than proved, the methods used to establish the
renaissance of the Grand Style and the variety of precedent tech-
niques may have been unnecessarily elaborate. It is not so much that
failure to adopt suitable methods invalidates the most important
conclusions as that those conclusions might easily have been much
more precise and sophisticated if the conceptual apparatus had
been more refined.
Llewellyn missed another important opportunity in that he failed
to put this highly specialized study in its proper perspective.
Although he emphasized that he was confining his attention to
American state appellate courts, he did not make sufficiently clear
that he was concentrating on a small proportion of the work of
those courts, that is on appellate cases worth appealing. This may
have misled some readers into exaggerating such matters as the
 THE COMMON LAW TRADITION 269
range of the leeways or the importance of differences in judicial style
or the significance of the saying that 'rules are not to control, but
to guide decision'. 282 More fundamental is the point that by
failing to put American state appellate decisions in the context of
the total picture of dispute-settlement in American society,
Llewellyn left unanswered the question: How socially significant is
this type of. institution? This is a strange lapse, for few juristic
theories are better suited than the law-jobs theory for providing just
this kind of perspective.
The Common Law Tradition is a warty giant, but it is a giant
nonetheless. For many books it would mean consignment to oblivion
if the judgment were accepted that its faults included bad organiza-
tion, deficient methods, indecision concerning readership, and lack
of perspective. The Common Law Tradition will survive such a
judgment. It would do so even if it were to be shown that there was
no crisis of confidence among the bar in the 1950s, nor any renais-
sance of the Grand Style, or that there is more to the view than
Llewellyn allowed that the Formal Style promotes 'certainty'. The
reason is simple. The basic perceptions and analysis of the book are
sound and show ways to a more profound understanding of appel-
late judicial decision-making than any prior analysis. It contrasts
sharply with the graceful simplicities of Cardozo on the one hand
and the facile and shallow scientism of much jurimetric analysis
on the other. The chief weaknesses are remediable: the terminology
can be refined; more orderly techniques for analysing and compar-
ing judicial opinions may be evolved; better methods for testing
predictability have begun to be devised, and so on. The crux of the
matter is that The Common Law Tradition is founded on a number
of aperfus, some original, others neglected, which are of funda-
mental importance and which provide a starting-point for a wide
range of potentially fruitful investigations: the steadying factors;
the styles of judicial opinions; the range of techniques for interpret-
ing cases and statutes; techniques of appellate advocacy and of other
specialized roles; even the elusive 'situation sense' are among the
ideas that could inspire valuable research. These are the more
obvious ones related to the general argument; there are many other
suggestive obiter dicta buried in the detailed analysis. Despite its
faults, The Common Law Tradition promises to be a rich source of
insight into judicial processes for many years to come.
II

The Genesis of the Uniform

1
Commercial Code

INTRODUCTION
The Uniform Commercial Code is the product of one of the most
ambitious legislative ventures of modem times. The 1962 Official
Text with comments fills a substantial volume of 731 pages. The
Code contains over four hundred sections, divided into ten articles,
and covers most, but not all, of the extensive field of commercial
law. 2 Between July 1953 and July 1966 the Code was enacted in
fifty-one jurisdictions. By the end of 1969 only one American State,
Louisiana, had held back.
In its brief life the Code has generated a vast literature. There is
a quarterly journal devoted entirely to it. A bibliography published
in xg66 ran to 176 pages and listed over fourteen hundred items;8
the compiler of the 1969 edition of the same bibliography noted that
'the past two years have produced over 500 law review articles as
well as over I oo books and pamphlets devoted exclusively to the
Code'.~ This flood of literature shows no signs of abating.
Where so many experts have rushed in, an outsider is tempted to
emulate the angels. However, in a study of Llewellyn the Uniform
Commercial Code cannot be ignored: over a period of fifteen years
( 1937-52) he devoted a major part of his energies to it and his contri-
bution represents one of his greatest achievements. The full story of
his participation could well be the subject of a book in itself. The
present study is concerned with Llewellyn's contributions to
commercial law only in so far as they have a direct bearing on his
juristic ideas. The reader must look elsewhere for a systematic exam-
ination of the Uniform Commercial Code as a commercial law
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 27I

document 5 or for a blow-by-blow account of the conflicts that had

to be resolved durin!!' the Ion!!' process from original concep-
THE GENESIS OF THE UNIFORM COMMERCIAL CODE 271 sed
on two related questions: first, what part did Llewellyn play in the
code project? Second, what is the nature of the relationship between
the finished product and Llewellyn's jurisprudential ideas?
Neither of these questions is susceptible of a simple, clearcut
answer. The Uniform Commercial Code has been referred to as
'Llewellyn's Code' ,7 'Code Llewellyn',& 'Lex Llewellyn' 9 and, by
one learned writer, as 'Karl's Kode'. 10 There is even rumour of
references to a 'Llex Llewellyn'. Yet one of the claims most
commonly advanced in favour of its adoption was that rarely, if
ever, in legal history can so many lawyers and other interested
parties have been actively involved in the preparation of a single
legal instrument. 11 Soia Mentschikoff entitled an article: 'The
Uniform Commercial Code: An Experiment in Democracy in Draft-
ing' ;12 as early as 1950 it was claimed that over a thousand lawyers
and businessmen had participated in the project and thereafter the
numbers continued to grow ;18 Llewellyn was always emphatic that
even the preliminary drafts were products of teamwork and it will
be seen that the idea of consensus was an important element in his
approach. While there is no doubt that Llewellyn was easily the most
important single figure, there were others whose contributions must
be recognized, not least in the exertions of individual reporters such
as Prosser, Bunn, Gilmore, Dunham and Mentschikoff. William A.
Schnader, the President of the NCC and a former Attorney-General
of Pennsylvania is sometimes referred to as 'the father of the
Uniform Commercial Code' in recognition of the fact that the
original idea was his and that he played a crucial role, especially in
respect of promotion and enactment. Llewt>llyn's personal contribu-
tion cannot be assessed in isolation from the efforts of these and
many other persons.
Since the Code was in large part a product of teamwork, it is not
possible to delineate with precision the exact role of Llewellyn or
any other leading participant. But it is possible to outline his share
in general terms and to point to certain specific features of the
Code which can fairly be attributed to him. At least in respect of
such features it is also possible to examine the relationship between
the Code and Llewellyn's general ideas. Here, too, there is a need
for caution. The Code does not provide a simple example of the
272 KARL LLEWELLYN AND THE REALIST MOVEMENT

application of a general theory to a concrete problem. It is clear

that the traditions of the sponsoring bodies, limitations of time and
money, considerations of political expediency, the personalities of
individual participants and, above all, the pragmatic tendencies of
Llewellyn himself, are among the factors which complicate the
picture and preclude any possibility of analysis solely in terms of
the ideas of the Chief Reporter. But it is equally clear that these ideas
were operative to a high degree and that some of the most striking
features of the Code are to be explained in terms of them.
I propose to consider Llewellyn's relationship to the Code in two
stages, first historically and then analytically. The remainder of the
present chapter, then, is devoted to a brief historical account of the
preparation of the Code and of Llewellyn's part in it. This provides
a basis for answering in general terms the question : to what extent
was this really Llewellyn's Code? In the next chapter some detail is
added to this general overview, by considering analytically the
relationship between a number of Llewellyn's general ideas and
selected aspects of the Code.

THE NATIONAL CONFERENCE OF COMMISSIONERS ON

UNIFORM STATE LAWS AND THE AMERICAN LAW
INSTITUTE

The story of the Uniform Commercial Code has its roots in the
history of two national institutions, the National Conference of
Commissioners on Uniform State Laws and the American Law Insti-
tute. a Both of these came into being in response to the need for
unification, simplification and betterment of law in the United
States. The NCC was founded, largely on the initiative of the
American Bar Association, in I8g2. From the outset the conference
consisted of unpaid commissioners appointed by the governors of
the states: up to I 940 it had rarely met more than once a year and
for the most part it had restricted its activities to preparing and
promulgating acts which it recommended for adoption to the legisla-
tures of the various states. 13 Over a long period of time it was
conspicuously successful in securing the wide adoption of uniform
statutes relating to commercial law, as is shown by the following
table: 16
 THE GENESIS OP THE UNIFORM COMMERCIAL CODE 273
Uniform Act Promulgated Number of States
in 1958
Negotiable Instruments Law 18g6 48
Uniform Sales Act I go6 34
Uniform WarehouseReceiptsAct tgo6 48
Uniform Stock Transfer Act 1909 48
Uniform Bills of Lading Act 1909 31
Uniform Conditional Sales Act 1918 10
Uniform Trust Receipts Act 1933
Although the widespread adoption of these statutes represents an
impressive record of achievement by the National Conference, the
table also provides evidence of some of the limitations of that
body. Their successes were limited almost entirely to the commer-
cial law field, and pioneering ventures such as the Uniform Act on
Contribution Among Tortfeasors met with little support. Although
by 1940 seven major uniform acts had over time been adopted by a
substantial majority of American jurisdictions, in some cases by all
of them, the process had been extremely slow and laborious. For
instance, it had never taken less than ten years between the date of
promulgation of an act and its adoption by a majority of the states;
it took forty-seven years to secure the enactment in every jurisdiction
of the Uniform Stock Transfer Act, promulgated in 1909; after fifty
years only thirty-four states had enacted the Uniform Sales Act.
Further difficulties arose when the conference proposed amend-
ments. For example, although all jurisdictions enacted the Uniform
Warehouse Receipts Act, even as late as 1958 only sixteen had
adopted the amendments proposed by the conference in 1922Y
Thus up to 1940 the conference had not satisfactorily resolved the
problem of reconciling the need for uniformity with the need for
continuous improvement and adaptation to changing conditions.
The American Law Institute has its origins in a project for a
'juristic centre for the betterment of the law' that was proposed by
members of the Association of American Law Schools in 1921. An
extremely distinguished committee of f?rty, under the chairmanship
of Elihu Root, was established in 1921 and reported in 1922. 18 The
report of the committee is over one hundred pages long and it
contains what is still one of the best orthodox analyses of the
major contending forces at work in promoting and fighting un-
certainty, complexity and lack of uniformity in American law. The
main recommendations of the committee were that the American
274 KARL LLEWELLYN AND THE REALIST MOVEMENT

Law Institute should be set up and that its first major undertaking
should be to prepare a 'Restatement of the Law'.
The Restatement is a curious hybrid, reflecting a mixture of
influences. As the committee saw it, there were two chief defects in
American law, uncertainty and complexity. The main sources of
'uncertainty' were seen to be lack of agreement on fundamental
principles, lack of precision in the use of legal terms (an echo of
Hohfeld)/ 9 conflicting and badly drawn statutory provisions, over-
subtle distinguishing between precedents, the great volume of
recorded decisions, the low standards of legal education of judges
and lawyers, and the number of novel legal questions occasioned by
social and economic development. The committee saw complexity
as being partly inevitable, reflecting modern conditions, but partly
due to the lack of systematic development of the law, to the un-
necessary multiplication of administrative provisions and to the
factors promoting lack of uniformity of law between jurisdictions.
While paying tribute to the achievements of the National Confer-
ence and expressing admiration for their methods, the committee
sought a device which would enable them to bypass the multiplicity
of state legislatures which had been the great stumbling-block as
far as the NCC was concerned.
The committee considered that the first priority should be the
reduction of uncertainty and complexity. Their preferred solution
was a series of 'Restatements', which would set forth in clear and
simple terms a statement of principles where the law was clear and
offer a recommended solution where the law was unclear or lacking
in uniformity. In order to achieve this aim the work would have to
be the product of meticulous scholarship, tested by prolonged
scrutiny and criticism by members of the bench and bar, for it would
need to carry more weight as a persuasive authority than ordinary
textbooks and encyclopaedias.
The Restatement form is a theoretical hybrid, glossing over the
distinction between neutral exposition (description) of what the law
is and statements of preference or recommendations as to what
the law ought to be (prescription). One of the fundamental themes
of realist jurisprudence is, of course, that the nature of authoritative
legal materials is such that they do not always yield one correct
answer as to what the law is, with the result that equating exposition
of the law with a simple model of descriptions of the empirical
world is misleading. 20 The Restatement, while based on meticulous
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 275
analysis of the authorities, recommends solutions with relatively few
inhibitions when the authorities do not speak with a single tongue.
The method is that of interstitial development of the law by simplifi~
cation and by expressing choices between competing alternatives. 21
Its value for practical purposes lies in its accessibility, its relative
simplicity and its decisiveness. The two latter qualities reduce its
value for the historian or for the theorist who is looking for a
reliable contemporary 'description' of the state of the law at a
particular moment of time, a quest which some would consider to
be misconceived in any case.
The Restatements have also come under fire from other quarters.
To the radical reformer they are over-cautious as instruments of
legal development since they only attempt to change in the absence
of a consensus, and restrict themselves to choosing between alterna-
tives that have already been adopted somewhere. Although reasons
are regularly given for preferring a particular solution, they are rarely
of the kind that would satisfy the sociologically minded jurist or the
advocate of systematic law reform. In short, the Restatements have
been instruments of slow evolution rather than of a reformist
approach.
A study of the first volume of The Proceedings of the American
Law Institute makes it clear that the Restatements were always
conceived as instruments for the betterment of the form, and to a
lesser extent, the substance, of the law, a practical solution for a
practical problem. It is hardly less clear why this particular instru-
ment was invented for the purpose. Three main factors in combina-
tion virtually dictated the choice of some such solution: the first
and overriding consideration was that the legislatures must be by-
passed. The committee in its Report were circumspect in dealing
with this matter and provided some comforting traditional reasons
for not making statutes or codes their chosen instrument. 22 John
W. Davis at the First Meeting of the Institute was more blunt:
'None of us here, I fancy, certainly none of those who are familiar
with Congress or the forty-eight legislatures of our states, anticipate
that this labor shall be committed to their charge.' 28 Secondly, the
nature of the instrument was to some extent dictated by the class of
men who would primarily be responsible for doing the work. The
need was occasioned by failure of both the courts and the legislatures
to act as instruments of unification and simplification. There had
not been a single hierarchy of superior courts to act as a unifying
276 KARL LLEWELLYN AND THE REALIST MOVEMENT

agency for the common law and to provide a limited number of

bodies on which to drape a doctrine of precedent. The result was
that there was a multiplicity of courts of roughly cognate authority
handing down literally thousands of decisions annually, so that by
the end of the nineteenth century American lawyers were already
drowning in a sea of decisions. It is a plausible hypothesis that in
common law countries the opportunity for academic lawyers to have
themselves accepted as authoritative 'sources' of law is greatest when
there are either too few or too many precedents for the courts to rely
on conveniently. In a developing legal system there may be so few
that even an elementary local textbook which conjures doctrine out
of the most variegated sources stands a good chance of being used
for want of anything better; in the United States the courts must
have thirsted for some simple escape from the labours of handling
thousands of precedents. Where the legislatures are too many and
the courts are overproductive, the bar, as always, being too busy,
the academic lawyer gets his chance.
A third factor, it is suggested, was that the Restatements would
have to generate their own authority and influence. They would be
authoritative only to the extent that they would in fact be used by
the legal profession and the courts. To this end any suggestion of
utopian or radical reforms would need to be discounted. The accept-
ability of the Restatement would be enhanced by being primarily
expository in form and style. Meticulous scholarship, bearing the
stamp of approval of an institution with which the leaders of all
branches of the profession would be associated, and with the element
of reform minimized, would be its source of strength. 2 • Prestige
plus easiness to use form the basis of the Restatement's influence.
Its semi-official character inevitably restricts the Restatement's
effectiveness as an authoritative source of law. Where legislative
enactment is feasible, it is still preferable. Although for a period the
Restatements made more headway than the projects of the NCC,
in recent years the difference has not been so marked and several
important uniform laws have gained widespread acceptance. The
most substantial of these, and the first in time, was the Uniform
Commercial Code.
THE FEDERAL SALES BILL AND THE REVISED UNIFORM
25
SALES ACT
The creation of the Uniform Commercial Code represents one
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 277
phase in the history of the struggles of various national organizations
with the intractable problems of unification, simplification and
modernization of law in the United States. The project has its
immediate roots in a number of attempts to remedy deficiencies in
the Uniform Sales Act. This Act, for which Samuel Williston had
been chiefly responsible, was modelled on Chalmers' Sale of Goods
Act, 1893. It was adopted by the NCC in 1906 and by 1937 had been
enacted in over thirty jurisdictions. 26 The first important impetus
for revision came from the movement to introduce a federal sales
act, applicable to inter-state and foreign transactions. In I922 a
committee of the American Bar Association produced a draft Federal
Sales Bill which contained modifications of and additions to the
Uniform Sales Act. Williston himself assisted in the preparation
of this draft. This particular bill made little headway in Congress.
In January 1937, Congressman Walter Chandler of Tennessee intro-
duced a new bill, 27 in the House of Representatives. This bill followed
the Uniform Sales Act very closely. Widespread interest was stimu-
lated. The most significant response came from the Merchants'
Association of New York, which set up a committee under the chair-
manship of Hiram Thomas to study the bill. Their report, which
was published in February 1937/8 supported the introduction of a
Federal Sales Act as an instrument of unification, but suggested some
amendments which would lead to significant departures from the
Uniform Sales Act. The bill was re-drafted in the light of this report.
This embodied nearly all of the proposals of the Merchants Associa-
tion and was introduced in Congress by Chandler in July I937. 29
It was referred to the Committee on Interstate and Foreign
Commerce, where it died. However, it was resuscitated two years
later by Representative Herron Pearson of Tennessee. 80 In the
interim there had been considerable activity. In 1937 the ABA had
adopted a resolution urging the enactment of such a bill; in 1939 the
AALS devoted a round table to the bill and this formed the basis
of a symposium published in the March I 940 issue of the Virginia
Law Review, to which Llewellyn contributed a paper. 81 There was
a broad consensus in favour of the bill before Congress, but a number
of detailed criticisms were voiced. Concurrently the Rome Institute
for Unification of Private Law had been actively concerned with
preparation of a Uniform Law on International Sale of Goods with
which Llewellyn has been briefly associated in 1931-2. A second
draft of this was published in 1939·
278 KARL LLEWELLYN AND THE REALIST MOVEMENT

Naturally all of these activities were followed closely by Llewellyn.

For nearly twenty years he had specialized in this area and he had
for a long time been highly critical of the Uniform Sales Act.
Chandler's first bill spurred him to action. He contacted Chandler
and Thomas and a number of other individuals interested in reform-
ing the law of sales. He found himself in substantial agreement with
Thomas, except that he favoured rather more sweeping changes
than they had proposed. He persuaded Thomas to try to work
through the NCO, but when he first tried to stimulate the
NCO into activity he ran into difficulties, for he found himself in a
minority on the question of priorities between uniformity and reform.
Llewellyn saw a Federal Sales Act as a means of promoting general
reform of the law of sales. If Congress acted, it would be difficult for
the states not to fall into line. 82 On the other hand, a majority of
the Executive Committee of the NCO, including the President,
William A. Schnader,83 saw a Federal Sales Act which diverged from
the Uniform Sales Act as a serious threat to uniformity. Further-
more, Schnader himself was a supporter of decentralized govern-
ment and was suspicious of moves which might increase the influence
of Congress over commercial law. In October 1937 the Conference
on Uniform State Laws in its meeting in Kansas rejected a motion
by Llewellyn that a committee should be set up to follow and co-
operate with the preparation of a Federal Sales Bill. Instead, it
resolved that the Federal Sales Act should conform as nearly as
possible with the Uniform Sales Act. However, there was a good deal
of sympathy with Llewellyn's ideas. At the same meeting it was
decided to invite him to take over the chairmanship of the Commer-
cial Acts section and Schnader indicated84 that it was still open to
him to pursue plans for reform of the Uniform Sales Act and that
the defeat of his motion should not be treated as a matter of
consequence.

THE CODE PROJECT: PLANNING AND PRELIMINARIES

In the long term the delay in the enactment of the Federal Sales Bill
and the initial caution of the NCO were a blessing for Llewellyn. For
after 1939 the initiative for pursuing the matter passed to the NCO
and during the next stage, the preparation of a Revised Uniform
Sales Act came to be treated as a pilot project for a much more
ambitious matter, a comprehensive commercial code. It was
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 279
Schnader who was responsible for the transition. He had become
President of the NCC after a period of relative inactivity by that
body. He was one of a reform-minded group in the organization
who were anxious to make it more effectual. The record of the NCC
up to that time showed that the one area in which there had been a
relatively consistent demand for uniformity had been commercial
law. In September I940, at the soth Annual Meeting of the NCC
in Philadelphia, Schnader in his Presidential Address took the
opportunity to review generally the work of the conference and
to put forward some ideas for its future activities. The first public
suggestion for a comprehensive code was introduced briefly, almost
casually, in this speech:
Our splendid commercial acts were prepared and adopted by this Conference
many years ago. Many changes in methods of transacting business have
taken place in the meanwhile.
In addition, they were adopted and recommended piecemeal. In a
number of respects, there is overlapping and duplication, and in some
instances, inconsistency, in dealing with negotiable instruments, bills of
lading, warehouse receipts, stock transfers, sales and trust receipts.
Could not a great uniform commercial code be prepared, which would
bring the commercial law up to date, and which could become the uniform
law of our fifty-three jurisdictions, by the passage of only fifty-three acts,
instead of many times that number? 85
This statement marks the beginning of the public campaign for a
code, but it had been anticipated by a great deal of preparatory
work. Three memoranda by Llewellyn on plans for the code survive
in his papers, all dated I940 and preceding Schnader's speech
to the conference. 38 They do not tell the whole story, but they
clearly indicate that Llewellyn and Schnader were working closely
together and were the two people most active in developing the
idea at this stage. The original idea may have been Schnader's, but
nearly all of the first detailed planning was done by Llewellyn. By
the time of the first official announcement the general strategy in
respect of objectives, scope and method had been worked out.
Although this strategy changed over time, the basic conceptions
survived for the most part and they represent some of the most
important and visible aspects of Llewellyn's contribution.
In September 1940 a First Draft and Report on a Revised
Uniform Sales Act was presented to the conference by the Commer-
cial Acts section. This was principally the work of Llewellyn, who
r.z8o KARL LLEWELLYN AND THE REALIST MOVEMENT

had worked intensively for five weeks on the draft during the
summer. He had taken as his starting-point the second Federal
Sales Bill and he had also found useful a study of this bill by a
committee of the Association of the Bar of the City of New York; 87
but Llewellyn's draft constituted a complete re-working and
contained a number of new proposals. After consideration of this
draft by a Committee of the Whole, the Conference set up a
reconstituted committee on a Revised Uniform Sales Act, with
instructions to produce a Second Draft based on the first 'to be
planned as a chapter in the projected Uniform Commercial
Code'.88
During the next academic year George Bogert of the University
of Chicago and Llewellyn both used the First Draft and Report in
their courses on sales. The flood of literature on sales in the law
journals swelled and numerous comments and suggestions poured
in. Then, in the summer of 1941, Llewellyn worked intensively on
the draft for two months and by the end of August had produced
a report, which was circulated in the form of a printed book of
r.z88 pages,88 containing a very detailed critique of the Uniform
Sales Act and the case-law surrounding it, an analysis of the problems
of producing a semi-permanent code and a complete new draft,
backed by extensive annotations and comments. This was immedi-
ately recognized as a remarkable feat and earned high praise in
several quarters.'° Corbin reports that a leading trustee of
Columbia, who had been incensed by some public pronouncements
of Llewellyn's to the point that he formally demanded his discharge,
read the report and was so favourably impressed that he immediately
went to Dean Smith and confessed that he had made a serious error
of judgment about Llewellyn. u The draft also served to convince
the NCC that a complete code was a desirable project and that
Llewellyn was the person best qualified to direct it.' 2
At the 1941 meeting of the Conference Schnader announced that
he had held tentative discussions with the American Law Institute
about the possibility of making the code a joint project." This
approach to the American Law Institute came at a time when the
first phase of their work on the ambitious Restatement project was
nearing completion. There were in fact some members who felt
that on the completion of this project the ALI should be dissolved,
but a majority of the executive were in favour of continuing and saw
in the proposed code an undertaking desirable in itself, which fitted
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 28I

in very well with the objectives of the Institute.~~ Schnader and

Llewellyn saw clear advantages in cooperation. The NCC had an
unwieldly structure and the quality of its membership was rather
variable. Membership of the ALI was a professional honour restric-
ted mainly to leaders of the bench, the bar and the law schools;
it offered the promise of influential backing in raising funds, in
obtaining cooperation, and in gaining acceptance of the finished
code, and it provided a means of associating many more leading
lawyers with the project. As it was put in the application for a grant
to the Falk Foundation: 'Study of the code by 950 leading lawyers
of the country is incomparably more advantageous than study by a
mere 150.'40 The procedures used in preparing the Restatements
could be adapted quite easily for the Code project!6 Finally, there
was already in existence a contract of cooperation between the
two bodies under which a Joint Tortfeasors Act and a Property Act
had been produced. There was no serious obstacle to making a
further arrangement. It was agreed to start with a cooperative
project restricted in the first instance to sales and this was arranged
in 1942. The ALI nominated Llewellyn as their Chief Reporter. The
following November Soia Mentschikoff became Assistant Chief
Reporter. Thus the sponsorship was obtained of the two most
influential bodies concerned with unification and improvement of
the law.
Between I942 and 1944 plans for the Code were developed
slowly and various efforts to raise funds were made, principally by
Schnader and William Draper Lewis, the director of the American
Law Institute. By May 1944 the financing of the code project was
assured by a grant of $ 15o,ooo from the Falk Foundation, backed
by approximately $ IOo,ooo subscribed by various individuals and
business concerns. During this period Llewellyn wrote a series of
memoranda about the Code, and helped to draft applications for
funds, but his main efforts were directed to the Revised Uniform
Sales Act. The principal activities were summarized by Llewellyn
in 1943 as follows:
The year 1!)42-3, moving under an adaptation of the Institute's procedures
presented a complete revision and rearrangement of the draft, a first canvass
of the whole and substantial completion of a second canvass by the advisers
in an unparalleled series of meetings at five week intervals. In addition, the
Conference Committee spent eight days reviewing the results. The Con-
ference itself (the Committee sitting between sessions) devoted some two-
282 KARL LLEWELLYN AND THE REALIST MOVEMENT

thirds of its entire 1943 meeting to the Act, and approved it subject to
changes which may be found needed by the joint Revising Committee, and
su~ject to similar action by the Institute.' 7

This draft was considered at the ALI Conference in Philadelphia in

May I944. 48 By then both organizations were convinced of the
desirability and feasibility of the code project and, after further
discussion at the NCC meeting in September, a formal agreement
was drawn up between the two organizations and signed on
I December I 944·49
This document, which was generally referred to as 'the Treaty',
is important, for it established the constitutional framework of the
code project. The key provisions read as follows:
II. Organization Diagram
The cooperative organization shall consist of the following:
1. A Chief Reporter
2. An Assistant Chief Reporter
3· An Editorial Board composed of two representatives of the Institute, two
representatives of the Conference and the Chief Reporter. GO
4· Reporters for appropriate parts of the Code. a1
5· Advisers for each Reporter, the Advisers to be six in number, three
selected by the Conference and three by the Institute.
6. Reportorial groups, each group consisting of the Director of the Institute
as chairman, a Reporter, his Advisers, and ex officio the Chief Reporter,
the Assistant Chief Reporter, and the Assistant Director of the Institute,
who shall preside in the absence of the Director.
7· Special committees, if and when the Editorial Board deems that their
appointment would be helpful. If and when appointed such committees
may be committees of the Conference, Committees of the Institute, or
joint committees of the Conference and the Institute, as the Editorial
Board determines.

Duties of the various units

r and 2. Chief Reporter and Assistant Chief Reporter
The Chief Reporter shall have general supervision over the work of all
other Reporters and their assistants.
Subject to approval by the Editorial Board, he shall give instructions to
the Reporters as to the theory on which drafts shall be prepared, style, and
the general scope of comments.
All drafts shall be presented to the Chief Reporter for editing and shall
be by him presented to the Editorial Board for approval as to general scope
and content before submission to the Commercial Law Acts section of the
Conference, the Council of the Institute, the Conference, or the Institute.
 THE GENESIS OP THE UNIFORM COMMERCIAL CODE 283
As ex officio members of the several Reportorial Groups, the Chief
Reporter and Assistant Chief Reporter shall have the right at their pleasure
to attend any meeting of any Reportorial Group and participate in its
deliberations.
Also, the Chief Reporter and Assistant Chief Reporter shall co-operate
with each Reporter and participate with him in the presentation of drafts
to the section, the council, the Conference or the Institute. ' 1
This agreement clearly established that although the ultimate
responsibility was vested in the Editorial Board, the Chief Reporter
was to be the lynch-pin of the whole enterprise; each article was
initially the responsibility of a separate group of people (the
Reporter and his advisers), and each draft had to be presented to the
Council of the ALI and the Commercial Acts section or the
Property Acts section of the NCC. As the one person who could
appear in every arena in which matters pertaining to the Code were
discussed, the Chief Reporter had a key role in ensuring that the
unity in substance and in style of the Code was maintained. Perhaps
most important of all was the responsibility vested in the Chief
Reporter for the general theory and style of each article, and by
implication for the Code as a whole. Even before the 'treaty' was
concluded, the main lines had been established by Llewellyn and he
provided the first guidelines for reporters in respect of scope,
approach and style.
The strategic constitutional position of the Chief Reporter was
strengthened in fact by his role in the selection of key personnel and
by the actual composition of the Editorial Committee and the
advisory committees. Perhaps his most important choice was Soia
Mentschikoff as Assistant Chief Reporter, a choice which initially
occasioned some raised eyebrows, but which soon was recognized
as a brilliant appointment. As his former pupil and research assist-
ant, as his devoted disciple, with an unrivalled understanding of his
approach, and, from 1946 as his wife, she could be relied on to be
both loyal and consistent in promoting Llewellyn's views. Once
again, Llewellyn had as his partner someone who not only shared his
ideas, but complemented his personality almost ideally in every
phase of the work: suspicions that the project was a theorist's
dream-castle would be further allayed by the participation of
Mentschikoff, who until 1948 was a Wall Street lawyer and very
much a practitioner's lawyer; her practice had been mainly in
Labour Law and, as Llewellyn was never tired of repeating, she
284 KARL LLEWELLYN AND THE REALIST MOVEMENT

brought the 'fresh eye of the non-expert' to most areas of commer-

cial law. She was shrewd and formidable in handling people; she
had extraordinary technical ability and facility in drafting and her
capacity for calm, lucid presentation in committee or on a public
platform has become legendary. In presenting drafts Llewellyn and
Mentschikoff would alternate, providing a contrast in styles that
facinated and perhaps sometimes bemused the audience. As a
performer on the floor of the ALI or the NCC Llewellyn was capable
of assuming any of a number of guises, but with Mentschikoff the
range was greatly increased.
Between them Llewellyn and Mentschikoff were Reporters for
over half the Articles of the Code and there were no sections which
were not at some stage revised or completely redraft~d by one or
both of them. Normally the responsibility for presenting drafts for
consideration by the Editorial Board, the ALI and the NCC lay
with Reporters of individual articles, but almost invariably either
the Chief Reporter or the Assistant Chief Reporter, usually both,
were present, ready to intervene when necessary, and sometimes
taking over the main task of presentation. The appointment of Soia
Mentschikoff as Llewellyn's assistant immeasurably increased the
extent of Llewellyn's influence, notably in the preliminary stages,
but also after he himself was devoting less time to the project, and
even after his death in 1962.
Llewellyn had a free hand in the choice of Reporters; selection
was done after informal consultation with the inner establishment
of whom Schnader, Lewis and later, Judge Herbert Goodrich were
the most important members. In some instances non-experts were
deliberately chosen as Reporters, for reasons which will be discussed
later. This policy, coupled with the fact that several of those chosen,
notably Dunham, Gilmore and Leary, were promising young men
near the start of their careers, further entrenched Llewellyn's
influence. Llewellyn could also be confident of commanding a
majority on the Editorial Board of five nearly all of the time. He was
himself a member, Schnader trusted his judgment and Harrison
Tweed, the other ALI representative, was a devoted admirer. It has
been said that if Llewellyn found these two opposing him on some
issue connected with drafting, he realized that he was probably mis-
taken. Thus, Llewellyn nearly always had the support of the
Editorial Board, which had official responsibility for the project;
furthermore the Treaty was so drafted that the Chief Reporter and
 THE GENESIS OP THE UNIFORM COMMERCIAL CODE 285
the Assistant Chief Reporter were not subject to dismissal by the
board; if the question had arisen, probably they could only have
been ousted by joint action of the executives of the two sponsoring
bodies. In fact this question never arose. aa
Finally, Llewellyn also had a say in the composition of the
advisory committees, which formed the teams to work with each
Reporter. In selection, trouble was taken to bring together people
who could be expected to work together as a team. For example, of
the six members of the advisory committee on the crucial second
Article, Arthur Corbin, Tom Swan (a former dean of Yale Law
School) and Willard Luther had previously been closely associated;
as had Sterry Waterman (now a federal judge) and Charles Hardin.
The only 'outsider' was Hiram Thomas, who had been the key figure
in the Merchants' Association moves for a Federal Sales Act; he
had worked closely with Llewellyn at that time and fitted in with no
difficulty at all. This group complemented each other very well:
Llewellyn, Thomas and Hardin between them were a rich source of
information about commercial practices; Corbin was an unrivalled
repository of case-law learning; Swan was said to provide a sense
of structure; Waterman and Mentschikoff were used as uninhibited
non-experts, providing the 'fresh look' and the commonsense of the
outsider; Luther's capacity for succinct expression gave birth to the
expression-'Now, let's Lutherize the draft.'G' This team provided
the model for selection of other advisory groups.

PREPARATION OF THE FIRST COMPLETE DRAFT

(I944-9)
A detailed description of the process involved in preparing the first
complete draft would be tedious and is, in this context, unnecessary.
For the present purpose it is enough to describe the procedure in
general terms. Each article was first assigned to one or two reporters,
or associate reporters,u and an advisory group of six, most of whom
were practitioners or judges. The initial drafts were first revised with
Llewellyn and Mentschikoff before submission to the advisers for
comment and criticism. After an article had undergone at least three
such cycles, a draft was presented to the Council of the ALI and the
Commercial Acts Section or Property Acts Section of the Confer-
ence. Further revisions would be made in the light of the comments
of these bodies before drafts were forwarded to the full meetings of
286 KARL LLEWELLYN AND THE REALIST MOVEMENT

the ALI and NCC, which met jointly after 1948. Yet more revisions
would then be made and the process repeated until each draft article
was approved by the members of the two sponsoring organizations.
Meanwhile a draftsman usually had informal contact with interest
groups concerned with the article for which he was responsible and
with specialists in the field. By late 1948 Llewellyn was reason-
ably satisfied with all the articles except Articles 4 and 9· By May
1949 a complete draft together with comments was printed and
published.
Thus after 1944 the Code project became a genuine team effort.
Between 1944 and 1949 Llewellyn played a very active part, but the
Code was by no means his only interest. During the period he
continued to carry a full teaching load, as indeed he did throughout
his association with the project; he maintained a steady, though
diminished, output of articles in fields other than commercial law;
he did fieldwork among the Pueblos in New Mexico during several
of the summers; he was chairman of a number of committees, and
in 1948-g he was a visiting professor at Harvard, while still doing
some teaching at Columbia, so that he had to commute between
Cambridge and New York during term-time. Thus the Code was at
no stage a full-time job for him and from 1948 onwards he devoted
increasing time to academic work. At this point he began to turn
back to jurisprudence. By now most of his work on the Code was
done. He continued, however, to act as Chief Reporter until his
death, but from 1949 an increasing share of the burden of work was
assumed by Soia Mentschikoff, who up to that point had been in
full-time employment, first as a member of a New York law firm
and from 1948-50 as a visiting professor at Harvard Law School,
their first woman law professor. From 1949-51 she did not have a
full-time post and during this time she was able to spend a great
deal of time on Code activities. Thereafter she continued to relieve
her husband of much arduous promotional work, especially after
1955, when for medical reasons he had to work at a more leisurely
pace.

CONSULTATION AND CRITICISM (I 949-53)

After the publication of the first complete draft in May 1949,
comments were invited from a wide variety of sources and a number
of organizations were encouraged to undertake special studies of the
Code. Between 1949 and 1952 memoranda and reports were received
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 287
from Bar Associations, law firms, official committees set up in
various states, and commercial and business concerns such as the
Association of American Railroads (1950), The American Bankers'
Association (1951), the National Canners Association (1951), and
the American Warehousemen's Association (I 95 I). Literally thous-
ands of suggestions were received from every part of the country.
After requests from the ABA and others that they should be allowed
more time to study the Code, it was agreed to postpone submission
to the Legislatures until at least 1952. However, from 1950 a public-
ity campaign was launched by means of pamphlets, articles, addres-
ses and special institutes or conferences.
Naturally much of the comment, published and unpublished, was
critical. But there was surprisingly little concerted opposition to the
Code at this stage. The most important reasoned attack took the
form of an article by Samuel Williston in The Harvard Law Review
for February 1950. 56 His main target was Article 2, but he also
condemned the Code in general for being unnecessarily radical.
Apart from some detailed criticisms of the Sales Article, Williston's
objections add up to a typical example of a conservative defence of
the status quo. The arguments directed against the Code as a whole
and generally against the Sales Article can be briefly summarized:
the project is iconoclastic and unwise and will be a retrograde step.
There will be a difficult transition period, during which a great deal
of uniformity of law will be sacrificed. In so far as there is need for
change, this would be best done by piece-meal amendment. There
is, however, no need for radical change. The Uniform Sales Act
deliberately followed the Sale of Goods Act very closely even in its
phraseology and this has permitted uniformity between Ameri-
can and Commonwealth jurisdictions, especially England and
Canada. 57 The novel phraseology of the Code is particularly to be
deplored because not only does it create unnecessary differences
from legislation prevailing in other common law jurisdictions, but
also there will be a considerable amount of uncertainty until a
body of case law has grown up around the Code. 'Lawyers are well
aware that the words of a long statute, comprehending a large
branch of law, never clearly give the answers to all possible problems.
Years of judicial decisions are necessary to resolve the prob-
lems.' 58 Williston also listed a number of particular criticisms of
the draft, including a strong attack on the down-grading of 'title'
as a central concept.
288 KARL LLEWELLYN AND THE REALIST MOVEMENT

Williston's arguments about the danger that the Code would

reduce rather than promote uniformity have some force, at least at
the international level. They underline the basic dilemma facing
those who wish to promote both uniformity and modernity in
law. His arguments could be used against any attempt to change
any uniform law. Williston's assumptions and what he did not say
are in some ways more revealing than his explicit arguments. Above
all he was silent about the defects in the existing situation that
had stimulated the urge for reform. He made no attempt to answer
the claims of the proponents of the Code that the Uniform Sales
Act was in many respects out of touch with business practice or
unclear or unnecessarily complicated or inconsistent with other
commercial acts. In his argument against a fresh terminology, he
did not try to evaluate Llewellyn's claim that the terminology of
the Code reflected more closely the language of business and would
be more easily understood by people most closely affected by it.89
Williston appears to have assumed that it was sufficient that the
Uniform Sales Act was comprehensible to lawyers. Llewellyn
doubted whether even that was so. The draftsmen of the Code were
more concerned with 'the ease with which it can be understood
and applied by merchants without resort to litigation'. 80
Another difference appears to be that Williston's approach was
based on certain simple ideas which he took for granted as contras-
ted with one which was more self-conscious about objectives and
methods. Williston assumed that a precisely worded statute backed
up by a corpus of decided cases was the way of obtaining certainty
in the law. Llewellyn saw this as just one of a number of means of
attaining 'reasonable reckonability'. Williston does not seem to
have adequately faced the problem of devising an instrument which
must cope with different social and economic conditions, varying
from trade to trade, from place to place and from time to time.
Llewellyn saw this as a primary problem of uniform legislation in
the commercial field. Although by no means totally insensitive to
business practice, as draftsman of the Uniform Sales Act and other
uniform laws, Williston was prepared merely to make a few conces-
sions to business usage, rather than relatively systematically to
analyse the problem of providing a body of commercial law which
fitted the expectations and needs of businessmen in a free enterprise
economy. It is significant that in attacking Llewellyn's discarding
of title as a central concept, he made no attempt to meet Llewellyn's
 THE GENESIS OP THE UNIPORM COMMERCIAL CODE 289
criticisms, viz. that 'title talk' merely gave a facade of certainty and
that, as far as the behaviour of the courts was concerned, title
had for a long time been only spasmodically an operative concept.81
There is little sign, in this article at least, that Williston had grasped
this point at all.
The clash between Williston and the proponents of the Code must
have been painful for both sides. Williston, whatever his limitations,
was admired and liked by those who disagreed with him. Corbin, in
an article published shortly after Williston's, denied that he was
replying to the earlier article or that it was thinkable that he would
enter into a controversy with his 'beloved friend and revered
teacher'. 62 Llewellyn also had ambivalent feelings towards Williston.
He genuinely admired him as a scholar and frequently praised
his contributions at the tum of the century. Cases and
Materials on the Law of Sales, it will be recalled, was dedicated to
Scrutton and to Williston, 'the master and the builder of our law
of Sales'. However, Williston's approach was just not acceptable.
His faith in the value of sustaining the status quo was matched by
Llewellyn's faith in the promise of reform. Llewellyn was at pains
in his writings on the Code to praise the Uniform Sales Act in quite
lavish terms and to emphasize that the Sales Article was a develop-
ment in a direction that had already been charted by Chalmers and
Williston. 68 Corbin commented as follows:
I was not in touch with Williston when he opposed enactment of the
Revised Sales Act. He certainly trusted Tom Swan·and me. But he was the
author of the old Sales Act; and the new one was sprung on him as a complete
overhauling in the framing of which he had no part. There was more of the
old Act embodied in the new one than he knew. He was 8o; and the wording
was strange. Williston's limitations grew out of the fact that he was the
product of the leading Harvard Faculty of 187o-t8gs, a Faculty that
convinced its students that it had arrived at final principles."
Perhaps Williston should be given the last word. In a private letter
to Llewellyn, dated I9 May I949, he wrote:
Of course my fundamental objection, which I retain with all humility, is
restating the law, even where no substantial change is desired, in new
words (even if better) when the old words have been interpreted in the
United States for more than forty years, and are in many cases identical
with the words in the English statute in force there and in her colonies, and
not likely to be changed there.
You will pardon an old hunker like me citing as authority Lord Thurlow's
290 KARL LLEWELLYN AND THE REALIST MOVEMENT

reply to a leader of a band of dissenters who sought for amelioration of their

political disabilities: 'I'm against you, by God, sir, I'm in favor of the
established church; and if you'll get your damn religion established I'll be
in favor of that too.'
I recognize that what happened to Lord Thurlow's wishes may well
happen to mine, and if so, like him, 'I'll be in favor of that too•.es
Discussions of legislative reform tend to have a ritual quality.
Whatever the subject and the context one may expect that both
sides will claim that their solution will promote certainty, will satisfy
the consumer and will be more wise. This controversy is no excep-
tion. The sponsors of the Code were not impressed by Williston's
criticism and it appears to have had no noticeable effect.
In 1952, Emmet F. Smith, house counsel of the Chase National
Bank, started what was the nearest thing to an organized campaign
against enactment. He produced two substantial mimeographed
statements criticizing the Code both in general terms and in detail
and these were widely circulated throughout the United States.
Smith's arguments were generally neither well conceived nor well
presented and the most remarkable feature of his campaign is that
it was virtually unique in this period. 88 Smith tried, unsuccessfully,
to persuade prominent bankers to organize opposition to the Code
in Pennsylvania, but he and his banking colleagues were more
successful in New York and were instrumental in having the Code
referred to the New York Law Revision Commission.
Why was there so little organized opposition to the Code? Apart
from the widespread recognition that reform was badly needed,
several reasons may be advanced in explanation. First, in deter-
mining the scope of the Code, most of the fields which could be
expected to be the subject of political controversy were excluded or
treated as severable. 87 Ironically, Article g, which dealt with some
of the most contentious subject matter, eventually won some crucial
support for the enactment of the Code.S 8 A second factor was the
skilful diplomacy and political management of Schnader. Another
reason for the relative lack of organized opposition was the manner
in which criticism was handled. The desire to find as much common
ground as possible between those affected was genuine and was
seen to be so. The widespread consultation, the invitation of
criticism and suggestions for improvement, and the courteous and
patient manner in which critics were heard, must have drawn the
sting of many potential opponents. Issues were frequently re-opened.
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 29I

From the records it appears that repeatedly the Code staff waived
the opportunity to silence criticism as they might have done by
pointing out that the matter had been settled by a vote of the
sponsoring bodies. 89 Llewellyn's lack of 'pride of opinion' was often
remarked and undoubtedly the open-minded and good-humoured
manner in which he usually reacted to criticism was of crucial
importance. 70 In this respect the complex procedure of presenting
and debating successive drafts favoured the Reporters, for it meant
that they nearly always had more than one opportunity for getting
something accepted. Some of Llewellyn's favourite ideas-for
instance, the unconscionability provisions and the inclusion of letters
of credit-were only accepted at the second or third attempt after
initial opposition had been worn down or circumnavigated. On more
than one occasion, it is said, the Code draftsmen were able to get
their way by re-wording sections that had been voted down, without
changing their substance.
Finally, it may be pointed out that the 'democracy' of the process
was a qualified democracy. Despite extensive consultation and
public discussion the project was inevitably under the control of a
tightly knit group. Moreover, the membership of the NCC and ALI
was composed very largely of judges, leading private practi-
tioners, whose main clientele would tend to be capitalist enterprises,
and a sprinkling of established academic lawyers. Lawyers of all
kinds tend to have a vested interest in the status quo; a reasonably
high proportion of the members of both organizations, especially
the ALI, could be expected to be moderately 'liberal', but without
seriously challenging established institutions and ways of doing
things. The overwhelming majority of those consulted could also be
expected to share similar values: bar associations, large law firms,
banks, commercial interest groups, and individual lawyers. The
voices of organized labour, small consumers and opponents of the
capitalist system were muted or inaudible. Two classes of people
who might have been advocates of a different viewpoint, the
ordinary politician and radical-minded academic lawyers, had
limited scope. The politicians were told, with some justification, that
this was a technical reform, a matter best left to the judgment of
lawyers and businessmen. Academic lawyers, by virtue of their call-
ing, might be expected to be more open-minded in contemplating
innovations, more willing to experiment, more sympathetic to the
292 KARL LLEWELLYN AND THE REALIST MOVEMENT

consumer and generally more attracted to sweeping reforms than

either practitioners or businessmen. In fact the relatively few
academic lawyers who played a significant part in the preparation
or discussion of the various drafts, 71 'were not radicals', as Kripke
says, 'not communists, or anarchists, or revolutionaries of any
kind'. 72 Indeed, one might ask how many American academic
lawyers of that time, particularly those who specialized in commer-
cial law, could be so described. Llewellyn himself was sympathetic
to the consumer and 'the little man', but he gave the impression of
being less consistently consumer-oriented than some of his fellow
academics. He was as interested as anyone in achieving a fair
allocation of risk, but he was also particularly concerned with the
relatively uncontroversial objectives of unification, simplification
and modernization. It is worth noting that the most articulate out-
side critic of the Code, Beutel, was a law professor; 73 so was
Grant Gilmore who was the one member of the Code team who felt
strongly that too many concessions had been made to powerful
pressure groups, notably to bankers, in respect of Article 4· 74 What
has not been generally recognized is the extent to which the Code
contains provisions which are basically protective of consumers,
although not labelled as such, for instance the provisions concerning
warranties and limitations on remedies for breach, unconscionabil-
ity, good faith and commercial reasonableness in disposition of
defaulting collateral and, perhaps, revocation of acceptance.
The full potential of these provisions may have been obscured by
the propaganda for enactment of the Code which was directed
almost solely at financing institutions with their powerful state
lobbies. Had the Code project been started twenty years later, after
the national conscience of America had been stirred by the wider
recognition of poverty and social injustice, the propaganda about
the Code might have been different, but the substance would not
necessarily have changed significantly. As it turned out, the problems
of poor consumers, described graphically in Caplowitz The Poor
Pay More, 15 did not agitate the NCC until the late 1g6os when a
start was made on uniform consumer protection legislation. 76 It is
arguable that at that time equally effective protection for the
consumer could have been achieved through judicial development
of key sections of the Code. 77
 THE GENE.SIS OF THE UNIFORM COMMERCIAL CODE 293
THE NEW YORK LAW REVISION COMMISSION STUDY
AND AFTER
The original strategy for obtaining adoption of the Code was to
concentrate first on some of the principal commercial states,
especially California, Illinois, New Jersey, New York, Ohio and
Pennsylvania. Of these New York was the most important. It was
here that the Code sponsors experienced their first major setback.
In 1952 Governor Dewey had included the Code in his legislative
programme. But opposition, initiated in the first place by members
of the Chase National Bank and the law firm of Milbank Tweed,
made itself felt late in 1952, with Emmet Smith as the mouthpiece.
In January I953 a joint report was issued by committees of the
Association of the Bar of the City of New York and the New York
State Bar Association. The report contained a recommendation
that there should be a full-scale official study of the Code. On
8 February I953 Governor Dewey, after taking private advice, direc-
ted the New York Law Revision Commission to undertake such a
study and a generous allocation of $3oo,ooo was made for this
purpose. 18
In 1954 the commission held hearings in a number of centres in
New York State at which supporters and opponents submitted writ-
ten and oral evidence. Concurrently a number of consultants were
engaged to consider the Code from a variety of points of view.
Besides very detailed studies of each article, and some other tech-
nical studies, there was one of particular jurisprudential interest,
published under the title 'Problems of Codification of Commercial
Law'. This was the product of the joint efforts of Edwin W.
Patterson of Columbia and Rudolf B. Schlesinger of Cornell. The
former was mainly responsible for the section on codification of
commercial law in the light of jurisprudence and the latter for an
analysis of the Uniform Commercial Code in the light of compara-
tive law. This ninety-six page study was one of the most interesting
features of the reports of the NYLRC which eventually filled six
substantial volumes.
The final report of the commission was issued on 29 February
I956, almost exactly three years after the study was instituted. The
exercise had cost nearly one-third of a million dollars, not very much
less than the original Code project up to I950. During this period a
moratorium was called on attempts to have the Code enacted else-
294 KARL LLEWELLYN AND THE REALIST MOVEMENT

where, but consultation and promotional activities continued. From

the early days of the New York study it was obvious that there would
be a lot of criticisms to be met. Rather than wait for the commission
to report, the sponsors decided to reactivate the Editorial Board in
the summer of I954· Sub-committees were appointed for each article.
Every criticism made to the commission was studied by the appro-
priate subcommittee and a number of amendments referred to the
Editorial Board were approved by it and published as: 'Supple-
ment No. I to the Uniform Commercial Code' in January I955· 79
The final report of the commission dealt with the Code, as amended
by this supplement. By this device a lot of criticism which might
have been included in the final report was anticipated and dealt
with. Meanwhile members of the Code staff maintained a dialogue
with the commission, who were willing to cooperate. When its sub-
committees made tentative recommendations to the commission,
these were often referred to subcommittees of the Editorial Board,
which sometimes made tentative comments on them. Naturally the
Code's Reporters had an opportunity to present evidence at the
commission's hearings. Llewellyn made brief introductory and
closing statements in respect of most articles, and he and
Mentschikoff jointly presented Article 2. Towards the end, feeling
that at no time. had the general case for the Code been adequately
put to the commission, they petitioned for an opportunity to be
heard orally. On I6 August I954 Llewellyn appeared before the
commission and made a somewhat emotional statement on behalf of
the Code. The text, read outside the context of that occasion, gives
the impression of being one of his most interesting essays in
advocacy. 80 It also contains the most coherent statement of his
ideas on the Code (it is reproduced in Appendix E). Coming, as it
did, after the main oral hearings had been completed, it performed
the function of a closing speech for the defence. For the rather
hard-boiled 'court' his performance may have been too laden with
emotion to be completely appropriate and it is, in any case, difficult
to say what impression, if any, it made on the commission.
On 29 February I956 the commission reported. Their main report
was a typewritten document of a little over one hundred pages which
did not attempt to go into great detail. When it was eventually
published it was supported by appendices in a volume of just under
five hundred pages, much of which represented a condensation of
other material. So comprehensive was the New York study that it
 THE GENESIS OP THE UNIFORM COMMERCIAL CODE 295
virtually pre-empted the field. During the period of the study a
number of other bodies also examined the Code and subsequently
several states set up commissions to study the Code before enact-
ment. However, their reports were dwarfed by the New York study,
and most of them made no attempt to duplicate it. Thus the intensity
of this study, coupled with the commercial importance of New York
state, combined to make the commission's report the most import-
ant single outside influence on the next version of the Code, the
important 1957 edition.
The commission's report represented a partial victory for the
sponsors of the Code, but a victory for which a price had to be paid.
The most important conclusion was that a 'careful and foresighted
codification of all or major parts of commercial law' 81 was desirable
and that 'such a code is attainable with a reasonable amount of
effort and within a reasonable time' .82 They recommended, how-
ever, 'that the Uniform Commercial Code is not satisfactory in its
present form and cannot be made satisfactory without compre-
hensive re-examination and revision in the light of all critical
comment obtainable'.88
According to Schnader's estimate, the commission gave 'about an
So per cent approval of the Code',84 while Walter Malcolm painted
a more optimistic picture, by pointing out that the bulk of the
commission's criticisms were on minor points of drafting and that
only on two major issues of policy were there disagreements of sub-
stance, viz. whether letters of credit should be included in the Code
at all and on the conflicts of laws rules adopted in the 1952 draft. 8 ~
Certainly some of the most important features were approved by the
commission: the idea of having an integrated code, the presence of
comments (although there was criticism of some of the drafting and
disagreement about their status as aids to interpretation), the
principal innovations in the Sales Article, most of the policies of
seven of the nine articles, and the radical, and potentially controver-
sial, treatment of secured transactions in Article g. Although the
drafting of many sections or subsections was criticized, many of
these criticisms were concerned with minutiae. The aggregate of
changes recommended by the commission was substantial, but the
number could well have been greater but for the close liaison between
the Code subcommittees and the staff of the commission before the
final report was prepared. There are also grounds for believing that
some proposals for change were not made in the report because
296 KARL LLEWELLYN AND THE REALIST MOVEMENT

it was known that these would be unacceptable to the sponsors of the

Code.
The reactivation of the Editorial Board and its cooperation with
the New York Commission minimized delay in producing a
revised version, and, after intensive effort by the board and a series
of subcommittees,88 a new version of the Code was produced in
November 1956, only nine months after the commission's report
Llewellyn played a less prominent part in this phase and then
principally in the role of defender of some parts of the 1952 draft
which had been subject to criticism. The recommendations of the
Editorial Board were published in a form which made clear the exact
nature of the changes made in response to the suggestions of the
New York Commission and those of a number of other bodies. The
recommendations were accepted by the sponsoring organizations.
Reporting to the NCC in 1957, Schnader said:
I think, although I have not counted it up, it is fair to say that we adopted
fully ninety per cent of the recommendations of the New York Law
Revision Commission in one form or another. When I say we adopted them,
I mean we did not always adopt them in exactly the same language. We
didn't take all the recommendations. For example, they said: 'Drop
Article V entirely.... '
The Editorial Board felt that in states other than New York Article V
would be a very useful article and therefore instead of dropping it, we
thoroughly revised it, and it is still part of the Commercial Code. • 7
How much of Llewellyn's approach was sacrificed in the process?
To obtain an exact answer to this question it would first be necessary
to establish a more precise set of categories than we have at present
for differentiating between different styles and techniques of draft-
ing. Then the successive drafts of each article, and especially the
1956 Recommendations of the Editorial Board, would have to be
submitted to minute analysis; these would have to be compared
with formulations made by Llewellyn elsewhere. Even then there
would be some intractable methodological problems. This has not
been done. Until someone undertakes this arduous task, we must
rest content with a more impressionistic treatment.
It is generally believed that the 1952 version of the Code was
more influenced by Llewellyn than that of 1957. However, just as
between 1937 and 1952 he had genuinely accepted many suggestions
of others as desirable, so he agreed that the 1957 text represented, in
Wille respects1 an improvement on the earlier one. On certain
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 297
matters on which he felt strongly, such as the retention of Article 5,
the New York proposals were rejected. 88 Some other matters of
disagreement relate to points of detail which bear no clear relation to
his jurisprudential ideas or his general approach. The main general
issue relevant to our present concern was over the style of drafting.
And this issue is blurred. The commission took a pragmatic attitude
to drafting techniques and their report, in any case, represents a
compromise. Commenting on the widespread use of flexible
standards like 'reasonableness' and 'good faith', they recognized
that this involved a deliberate abstention from detailed regulation
and took the position that 'the wisdom of this approach must be
decided separately for each instance in which it is used'. They
accordingly judged each example separately and criticized, as
being too loosely drawn, a number of sections in which such terms
appeared. Similarly, many of their criticisms of specific sections seem
to have stemmed from a desire for greater precision, which led them
to prefer 'lawyerlike' concepts to the vaguer terms of ordinary
business parlance. As one of their consultants, Professor Robert
Pasley, put it:

In fact, generally speaking, the commission was a little dubious about the
widespread use of business terminology throughout the Code. Not that it has
anything against business terminology as such - it's often very convenient -
but it often lacks precision. It often means something in one part of the
country, something else in another part, or as between different industries
or lines of business. Throughout, the commission was anxious to see a
statute that would have an ascertained or ascertainable meaning. n

Just as Llewellyn was not dogmatic in insisting always on an

'open-ended' approach to drafting, so the commission was pragmatic
on this matter, and, indeed, criticized some parts of the Code for
adopting rigid rules which would not permit of a desired flexibility
in their application. 90 Nonetheless it is clear that the commission's
preference tended to be for tighter and more detailed drafting. 91
The acceptance of the commission's suggestions led to a more tightly
drafted instrument, at least in respect of Articles g, 4 and g, but it
must be remembered that the Code is still held out to be a rare ex-
ample of open-ended drafting, judged by the standards of modem
Anglo-American lawyers.
Grant Gilmore's conclusion on the matter, although it simplifies
a little, appears to sum up the position correctly :
298 KARL LLEWELLYN AND THE REALIST MOVEMENT

It was, I believe, Karl's non-systematic, particularizing cast of mind and his

case-law orientation which gave to the statutes he drafted, and particularly
to the Code, their profound originality. He was a remarkable draftsman and
took a never-failing interest in even the minutiae of the trade. His instinct
appeared to be to draft in a loose, open-ended style; his preferred solutions
turned on questions of fact (reasonableness, good faith, usage of trade)
rather than on rules of law. He had clearly in mind the idea of a case-law
Code: one that would furnish guide-lines for a fresh start, would accommo-
date itself to changing circumstances, would not so much contain the law
as free it for a new growth. The tastes of the practising lawyers, who
advised the draftsmen, were, in most cases, opposed to the flexible ideas of
the Chief Reporter: they preferred, they insisted on, a tightly-drawn statute,
precise, detailed, and rigid. Among the many drafts of the Code which
appeared, beginning in 1946, the early drafts were in many ways closer to
Karl's conception of the Code than were the final drafts. In the concluding
phase of the drafting, concessions were inevitably made to what might be
called political pressures; I do not mean to suggest that those pressures were
in any sense evil or malevolent. I have come to feel that Karl saw more
clearly than his critics and that the Code as he initially conceived it might
better have served the purposes of the next fifty years. 9 2

THE CODE AFTER I 956

Between the publication of the 1957 official text and the end of
1966, forty-eight jurisdictions including Hawaii and the Virgin
Islands, enacted the Code. Llewellyn's role at this stage was
peripheral. He was widely regarded as being less effective in promot-
ing than in preparing the Code. He was now hard at work on The
Common Law Tradition and his health was such that he had to
proceed with care. It has been suggested that the efforts he expended
on the Code in the 1940s affected his health. During the last five
years of his life he wrote one article on the Code and gave a number
of addresses as part of the campaign to make it better known.
However, the main activity at this stage was planned and super-
vised by Schnader and executed by local groups and individuals in
each state. By the time of Llewellyn's death twelve jurisdictions had
adopted the Code; the great breakthrough came in September 1 g62
when New York at long last followed suit. Thereafter the comp-
liance of the remaining jurisdictions was virtually assured. The
speed with which the next thirty jurisdictions acted in the period
1962-6 broke all records in the history of the NCC.
To complete the story to date) one final development must be
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 299
mentioned briefly. Mter the publication of the 1958 Official Text,
which diverged only slightly from the 1957 Official Text, the
Editorial Board considered that it was functus officio. However, a
new problem arose, as state after state adopted local variations,
thereby threatening to undermine uniformity. 91 In 1965 Schnader
estimated that of the first thirty states to enact the Code, only Penn-
sylvania had not departed from the official text and that up to
I January 1965 a total of 522 amendments were introduced by
adopting jurisdictions, California and Wisconsin being the worst
offenders with I25 and 47 respectively. The significance of this
figure can easily be exaggerated, for a high proportion of those
divergencies are in respect of filing arrangements in Article g, and
other matters in which uniformity is not of paramount importance.
Nevertheless, there was cause for concern. In an effort to regain
control of the situation a further grant was sought and procured
from the Falk Foundation to finance the establishment of a
Permanent Editorial Board, under the joint sponsorship of the ALI
and the NCC : 'to assist in attaining and maintaining uniformity in
state statutes governing commercial transactions and to this end
to approve a minimum number of amendments to the Code'.
In 1962 a new Official Text was promulgated incorporating twenty-
six amendments, but the board then took a strong line and, in its
second report (October I964), it rejected all subsequent non-uniform
amendments. An interesting battle was beginning to develop, the
Permanent Editorial Board holding as its key card the possibility of
the enactment of a Federal Commercial Code 'governing commer-
cial transactions to the limit of the jurisdiction of Congress over
interstate commerce'.94
However, by xg66 it had become clear that something would
have to be done about Article g. In its third report the board said:
By the time the November meeting was held, 337 non-uniform, non-official
amendments had been made to the various sections of Article g. Some
sections had been amended by as many as 30 jurisdictions, each jurisdiction
writing its own amendment without regard to the amendments made by
other jurisdictions and, of course, without regard to the Official Text.
47 of the 54 Sections of Article g had been non-uniformly amended.
In view of this distressing situation a,nd in view also of the fact that various
practicing lawyers and law teachers have written articles or textbooks point-
ing out certain respects in which Article g might be improved, the Board
decided that the time had arrived for a restudy in depth of Article 9 on
Secured Transactions. ua
300 KARL LLEWELLYN AND THE REALIST MOVEMENT

Accordingly a review committee was set up under the chairmanship

of Professor Herbert Wechsler to conduct a 'restudy in depth' of
Article 9 and to report to the Permanent Editorial Board. The
Review Committee circulated preliminary drafts in I968 and I970
and their final report was approved by the Permanent Editorial
Board, with some amendments, in February I97I. The proposed
revision of Article 9 will provide an interesting test of the willing-
ness and ability of the state legislatures to cooperate in maintain-
ing uniformity of the Code while allowing its sponsors to be respon-
sive to criticisms and to changing conditions.

'LLEWELLYN'S CODE'?
I have not attempted in this brief historical outline to dig far below
the surface of recorded events. Even in this limited exercise a degree
of speculation and value judgment has been unavoidable where
there have been gaps and conflicts in the evidence or where the very
nature of the enquiry makes precise delineation impossible. There
does, however, seem to be widespread agreement on the following
points:
(i) The original idea for a complete commercial code was prob-
ably Schnader's.
(ii) Almost all of the initial planning in respect of scope, objectives,
method and style was Llewellyn's and even the later editions of the
Code are remarkably close to his original conception.
(iii) In so far as drafting can be isolated from critique of drafts, on
a very crude estimate rather more than half of the initial drafting
was done by Llewellyn and Mentschikoff, Llewellyn being primarily
responsible for the general sections in Article I (excluding definitions),
Article 2 and Article 5· Even in respect of the other articles his role
as Chief Reporter involved him in extensive re-working of every
provision.
(iv) Llewellyn's official position under 'the Treaty' between the
ALI and the NCC, his key role in selection of personnel, coupled
with Schnader's confidence in him, and Mentschikoff's loyalty and
acceptance of his ideas, gave him an unassailably strategic position
for influencing events up to the point of promulgation of each draft.
(v) The Code was the product of teamwork. Llewellyn only ex-
ceptionally used his key position to push through pet ideas of his own
in the face of opposition; rather he regularly exhibited a rare open-
 THE GENESIS OF THE UNIFORM COMMERCIAL CODE 301
ness to suggestion and this was a key factor in allowing the ideas
and suggestions of a very large number of people to have a part in
the drafting process. Most of these suggestions tested his factual
assumptions or related to matters of expression. 'Democracy' with-
in the institutional context of the Code project was one of
Llewellyn's operative ideas, but inevitably much of the effective
power was vested in a small group.
(vi) Although concessions were made to placate opponents, there
were few, if any, matters on which Llewellyn made sacrifices of
principle or substance to save the Code. Some commentators may
have exaggerated the significance of the changes made after the
NYLRC study, but there is little doubt that the imprimatur of the
commission was of great political significance in getting the Code
adopted.
(vii) Llewellyn's principal contributions were made in the period
1937 to 1953, and most importantly in the first phases of planning
and drafting between 1940 and 1949· He played a relatively minor
role in respect of publicizing and securing enactment of the Code.
After 1955 his health was such that he had in any case to slow his
pace. Before then he considered that his main contribution had
been made. His ideas, however, continued to have influence through
the activities of Soia Mentschikoff, who continued to play an active
part after his semi-retirement from the project and even after his
death in 1962.
12

The Jurisprudence of the

Uniform Commercial Code

This brief study of the history and institutional setting of the Code
shows that the relationship between its basic theory and the finished
product was not simply one of conception and execution. The
project was neither conceived nor planned a priori. Schnader's idea
was stimulated by his concern, as President of the NCC, that the
institution was not achieving its aims. Commercial law appeared
to be the one area in which there was a consistent demand for
uniformity. The ALI and the NCC consisted of leading lawyers who
could be expected to be suspicious of innovation. The existing
Uniform Commercial Acts and the working procedures adopted for
the Restatement project were the obvious starting-points for discus-
sion of scope, substance and working procedures. From the outset it
was clear that if a code was to have a good chance of being enacted
it would have to satisfy three principal groups of people: the lawyers
in the sponsoring organizations, the more organized pressure groups
outside the legislatures, and the legislators themselves. An a priori
conception of an ideal commercial code would have needed
considerable modification to survive the processes which culminated
in enactment in a multiplicity of legislatures. Llewellyn never articu-
lated such a conception. In short, the desirable and the feasible were
not sharply distinguished.
This, then, was the context of Llewellyn's activities. What he
considered desirable was set in a framework of assumptions largely
fixed by a particular situation. There had to be a promotional aspect
about much of what he wrote or said in public about the Code. He
had to adopt a persona, play a part, in which the theorist and the
radical in him were played down, if not entirely suppressed. There
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 303
was scope for the colourful personality and for the flashing insight,
but within leeways set by the need to convince practical men that
this was an able lawyer, with a real feel for and knowledge of
business practice, concerned with practical problems in a practical
manner. With the ALI in particular it was important for him to
avoid projecting the image of the wild-eyed radical; in its place he
had to substitute Genius in the service of Men of Affairs. There can
be little doubt that Llewellyn thoroughly enjoyed the role; but such
was his empathy with the majority of the other participants that
to see this solely in terms of role-playing would be misleading.
Given the situation and the man it would be unwise to seek for a
tight logical theory underlying the Code. Nevertheless, Llewellyn's
approach was governed in large part by a number of operative ideas
which are closely related to his general theoretical position. This
chapter is devoted to the exploration of this relationship in connec-
tion with a number of selected topics.

OBJECTIVES AND UNDERLYING VALUES

The Code is to be judged by the usefulness and convenience of its own
organization, by the ease with which it can be understood and applied by
the merchants without litigation, by the aid that it gives to the courts in
reaching just decisions in accord with the mores and usages of honest dealers
and by the flexibility and effectiveness of its suggested remedies.l

The official purposes and policies of the Code were articulated in

s. 1-102(2) of the 1952 text:

(a) to simplify and modernize and develop greater precision and certainty
in the rules of law governing commercial transactions;
(b) to preserve flexibility in commercial transactions and to encourage
continued expansion of commercial practices and mechanisms through
custom, usage and agreement of the parties;
(c) to make uniform the law among the various jurisdictions.•

This is a fair statement of the principal general objectives that

Llewellyn pursued, but it requires amplification in the light of his
more detailed and less formal pronouncements of his aims. Normally
his starting-point was dissatisfaction with the existing state of the
law. 3 The objectives listed in section 1-102 are for the most part
remedial, referring by implication to alleged defects in the pre-exist-
ing situation: simplification implies that the prior law was both
304 KARL LLEWELLYN AND THE REALIST MOVEMENT

unnecessarily complex and was not easily understood by business-

men; 'modernization' implies that the prior law had not kept abreast
with changes in technology, in business practice, in methods of
financing and, to a lesser extent, with changes in the climate of
opinion in respect of values; mention of a need 'to develop greater
precision and certainty in the rules of law' implies that insufficient
guidance was given by the prior law to counsellors and others who
wished to make predictions about legal consequences; in Llewellyn's
view, a simple-looking formula, however precise, was unlikely to
provide a reliable basis for prediction if it did 'not fit the situation
and the situation's set of problems'.'
One aspect of the aim of simplification was of particular concern
to Llewellyn. Since the early 1920s, when he lectured to bank clerks,
he had been impressed by the need to make laws more accessible and
intelligible to those most closely affected by them. 8 This was one of
the main points in his first important general memorandum on the
Code. In it he pointed out Lhat there had in the past been a tendency
for Uniform Commercial Acts and the Restatements to be addressed
to lawyers, whereas 'commercial law requires to be for commercial
men, as well as lawyers'. 6 While Llewellyn conceded that it was
not practicable to hope for 'business law made plain to every lay-
man', 7 he felt that much of the technicality of the previous
Commercial Acts was unnecessary and had no positive value. He
was emphatic that in a democracy:
The legal profession needs to have the men of commerce think oflaw and
legal work, not as a baffling intricacy of ununderstandabletechnicality, but as
a helpful device which can be seen, directly, to be helpful though safety
requires the use of a lawyer's skills in developing its help. The fact that the
automobile is a friendly device has not reduced the need for mechanics; it
has, on the other hand, increased the service rendered by mechanics. But
that has depended on ready availability of the automobile to the public, on
the public's understanding enough about it to use it - and so to learn when
to consult the mechanic. So with commercial law. 8
As far as possible the draftsmen treated businessmen, as well as
lawyers and judges, as the principal addressees of the Code. An
attempt was made to use concepts familiar to businessmen; technical
legal terms and complex clauses were avoided where possible, and
in general 'the conveyancing approach to drafting by means of all-
inclusive detailed statement [was] rejected .. .'. 9 Where appropriate,
too, sections dealing with transactions were organized with the needs
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 305
of lay participants in mind. For example, s. 2-502(2) presents the
seller's duties in the form of a catalogue of acts which the seller must
perform, unless otherwise agreed, and this can be read as a set of
instructions addressed directly to sellers. 10 The policy of simplifica-
tion was not implemented in a crude or doctrinaire fashion, but it
is generally accepted that, whatever its limitations, the Code repre-
sents a considerable advance in this direction when compared to its
predecessors.
Llewellyn saw very clearly that the policy of simplification
involved giving over some discretion to the courts:
Technical language and complex statement cannot be wholly avoided. But
they can be reduced to a minimum. The essential presupposition of so reducing
them is faith in the courts to give reasonable effect to reasonable intention of the language. 11

Llewellyn did not see the granting of such discretion to the

judiciary merely as the inevitable price of simplification, for he also
maintained that 'semi-permanent Acts must envisage and encour-
age development by the courts'.12 And not only by the courts, as
s. I-Io2(2)(b) makes clear. In that section the aims of preserving
flexibility and of encouraging continued expansion of commercial
practices envisages a law-creating role for the business community:
the Code was conceived as an instrument which would provide the
starting-point for a new phase of development, unfettered by too
heavy a legacy of past authority and allowing, within broad limits,
for adaptation to varying conditions. 18 As the adoptive child of
many legislatures the Code was drafted in the expectation that it
would probably have to last without major alterations for a sub-
stantial period, at least thirty years, perhaps fifty, perhaps even
longer, with the prospect of an increasing momentum in the rate
of technological and other change. As Schlesinger pointed out in
his submission to the NYLRC, some of the nineteenth-century
continental codes started out as instruments of drastic social reform,
but because of the obstacles to regular revision of a code even in a
unitary state they eventually became in many respects obstacles to
progress. 14 Not only did the Uniform Commercial Code start out
as less of a reforming instrument than its continental cousins, but its
position as a Uniform Act, the creature of many legislators, makes
uniform revision and amendment very much harder. The machinery
set up to keep the Code constantly in review, the Permanent
Editorial Board, has so far been principally concerned to maintain
306 KARL LLEWELLYN AND THE REALIST MOVEMENT

uniformity by discouraging divergences from the official text. In

short, its main function has been to discourage change. When it
seeks to introduce amendments to the Code, its position is such that
it will be very difficult for it to be effectual, and the prospects of
success in the face of determined opposition are likely to be limited.
The final purpose explicitly stated in the text of the Code was
uniformity. Undesirable diversity in commercial laws was in part
attributable to defects in the old Uniform Acts which had resulted
in diversity in interpretation, and in confusion in areas where there
were overlaps or gaps or malfunctioning; it was also due to the almost
inevitable process of growing apart over time to which the new Code
would also be susceptible in the long run.
Most of the articulated objectives, taken singly, are relatively
conventional and uncontroversial. Few people would seriously ques-
tion the desirability of seeking modernity, uniformity, 'certainty',
clarity, consistency, and the avoidance of unnecessary complexity
in a commercial statute or code. If 'simplification' includes making
law comprehensible to laymen, there will be cavillers; when 'flexi-
bility' leads to open-ended drafting, there is room for differences of
opinion. 13 The extent to which 'adaptability' and 'certainty' or
'flexibility' and 'uniformity' are compatible goals has long been a
matter of juristic controversy. At various points in the preparation
of the Code these matters were the subject of disagreement, but, as
was noted above, the issues were not posed sharply and disagree-
ments were resolved pragmatically and by compromise, in a manner
which makes analysis difficult.
From some points of view the finished Code might be said to be
a relatively conservative document. Such departures as have been
categorized as radical relate mainly to technical matters: the
integration of a major part of commercial law into a relative unity,
the downgrading of 'title' in sales; the simplification of secured
transactions, and the departures in terminology and the general
style of drafting, are some of the most commonly cited examples.
None of these raise in a direct fashion policy issues of a kind likely
to excite laymen. Neither in policy nor in substance nor technique
does the Code represent a drastic break with the traditions of the
common law. Llewellyn characterized the Revised Uniform Sales
Act as 'a return to the Mansfield approach', but even some of his
Mansfieldian ideas did not survive, such as the provisions for the use
of merchant experts in the determination of mercantile facts, an
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 307

idea modelled explicitly on Mansfield's merchant's jury.18 It can be

pointed out that the project operated within a framework of
assumptions about a free-enterprise economy, a respect for private
property and for the existing structure of business, and the desir-
ability of free competition within broadly framed leeways; these
assumptions were never seriously questioned. It is also true that
some matters commonly associated with 'consumer protection' were
left to local regulation and that when objection was made to the
draft s. I-I02(3),17 on grounds that it tended to limit freedom of
contract, a revision was made in order that the Code should be seen
to state 'affirmatively at the outset that freedom of contract is a
principle of the Code'. 18 If these are indicia of 'conservatism' then
the Code was a conservative document. Per contra, in addition to
the matters mentioned above, it can be pointed out that the general
requirements of good faith, reasonableness and unconscionability,
together with certain express provisions from which there could be
no contracting out, set new limits to the principle of freedom of
contract, for the most part in ways likely to mitigate inequalities of
bargaining power, so that the Code is potentially more of a
'consumers' charter' than some have imagined. 19
In any event, to label the Code 'conservative' would not neces-
sarily be to condemn it. Its defenders can point out that there was
little evidence of widespread demand for more sweeping reform at
any time during the process of its preparation. The political and
institutional context of this process was such as to discourage overt
response to such demands. Llewellyn himself saw commercial law
primarily as an instrument for facilitating certain kinds of economic
activity and he had no political or ideological hobby-horses to ride
in this area, unless his concern with fair distribution of risk can be
so described. Throughout, his overriding objective was to achieve
certain limited goals and these did not include the introduction of
fundamental changes in the structure and patterns of business nor
in drastic re-ordering of values in commercial life.

LLEWELLYN'S IDEAS ON CODIFICATION AND HIS

APPROACH TO THE CODE
The word 'code' has no settled usage in the common law world.
Patterson, in his submission to the New York Law Revision
Commission, suggested that a partial definition would ascribe five
308 KARL LLEWELLYN AND THE REALIST MOVEMENT

principal characteristics: 'Orderly, authoritative (i.e. enacted by

legislation), selective (i.e., only the leading rules), comprehensive (i.e.
all of the leading rules) and unified (i.e. on a single subject
matter).' 20 The Code, with a few relatively minor exceptions, was
adjudged to satisfy this standard. Llewellyn would probably have
accepted this analysis, but would have placed more stress on its
being an integrated unit, consistent in form, in substance, in termino-
logy, and in directive principles and to be treated as a whole by its
interpreters. 21
In his discussions of the Code Llewellyn rarely made explicit
reference to the famous controversies about codification. Nor in his
advocacy for its adoption did he actually cast his arguments in such
general terms. Almost invariably he emphasized that the Code was a
particular instrument specially designed for solving a particular set
of problems. Nevertheless, implicit in his approach were certain atti-
tudes towards and ideas about codification, and in other contexts,
notably in teaching jurisprudence, he often discussed the ideas of
Savigny, Carter, Field, and other leading participants in debates
about codification. Since the approach he in fact adopted in
practice appears to be consistent with his general teaching, it is
useful to start by examining his theoretical position on this topic.
Characteristically this position was a deliberately flexible stance
between two extremes; just as characteristically he depicted these
extremes in colourful and somewhat exaggerated terms. On the one
hand was hopelessly naif optimism, symbolized by the approach of
Frederick the Great: 'This is the concept of a book of rules that
[covers] all cases that are going to arise, decides them in advance and
makes it possible, therefore, for true certainty to exist and for the
complete elimination of the ... troubling element of the person in
dealing with the law.' 22 Frederick is said to have hoped that his
code would be so simple and so comprehensive that 'the whole body
of modern advocates would be rendered useless' ;28 at first he for-
bade interpretation and ordered that in case of doubt recourse
should be had to legislative authority. The significance of this 'signal
failure', 24 in Llewellyn's view, was all the greater because at that
time Prussia was a compact, relatively simple, pre-industrial
society. Llewellyn was also inclined to treat Bentham as an ex-
tremist in respect of codification; he was more sympathetic to the
efforts of David Dudley Field in New York, but he nevertheless
considered his projects to be 'ill-conceived' 2 G and over-ambitious.
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 309
Thus Llewellyn dissociated himself from the attitudes of those who
saw codification as per se producing a high degree of 'certainty' in
law or as eliminating the discretion of the courts.
Llewellyn was rather more gentle, even affectionate, with the
opponents of codification. If the fault of the enthusiasts was a naif
optimism about the possibility or the value of crossing bridges before
one reaches them, contrasting faults were to be found in the absence
of orderly planning in much of the common law, at which he poked
gentle fun in his informal lectures:
Our own architecture is extremely crude, as you will appreciate if you ever
study the system of any well-codified body of law, such as the German
Civil Code, the Swiss Civil Code, the Code Civil; you compare that kind of
architecture with ours and [ours looks] like a kind of Topsy with neither
head nor tail nor plan, that just growed. It looks like one of these old New
England farm houses ..• a house that had another piece stuck on when the
first son got married and another piece stuck on when the second son got
married, and a third piece stuck onto the second piece when the first grand-
child got married, and the barns around here, along with the red carriage
house and various other things placed in some kind of queer fashion, none
of them having any particular initial plan, none of them having any parti-
cular relation to anything - each one nice enough, as far as it goes, rather
nice lines, too. Rather solidly built, close to the earth and homely and satis-
factory ..•• Where was the plan? .•. Nevertheless ••• it houses its people
and its work quite satisfactorily; I think ours does, though at some cost in
inconvenience. You keep, if I may stay with the figure for a moment, you
keep tripping as you move from one level to another, from one part of the
house. . • . [Have] you ever been through one of those old houses? .•• and
suddenly dropped, bang, down an extra step and landed on your face?
Well, our architecture is somewhat like that. 88
These two images are relevant to Llewellyn's approach to the
Uniform Commercial Code. It is impossible to cover all contingen-
cies; it is foolish and dangerous to try to do so: foolish because it
involves underestimating the range and complexity of possible
contingencies; dangerous because, in the architectural analogy, the
codifier is both the architect and the builder of the structure; it is left
to those who have to live with it to furnish, to decorate and,
where necessary, to make alterations and additions. Underlying
Llewellyn's approach, then, are certain basic conceptions about the
relationship of the codifiers to two groups of people-those affected
by the Code (the law consumers) and those charged with deciding
cases under it. The relationship with both groups must be based on
310 KARL LLEWELLYN AND THE REALIST MOVEMENT

two ideas: the codifier needs to recognize his own limitations of

understanding and foresight and he must trust the law consumer
and the decision-maker to act with good faith and good sense in
normal circumstances. Thus the image of the codifier of the Uniform
Commercial Code is not the dictatorial legislator, pretending to
omniscience, to prescience and to a capacity to make wise provision
for all difficult cases in advance of their occurrence. Nor is the
image of the typical law consumer the shark or the trickster, but
rather the respectable merchant who can be expected to act with
good faith, decency and commercial reasonableness. Similarly, the
image of the decision-maker is not the shyster, twisting the instru-
ment to suit his own ends, nor the literal-minded formalist, but the
grand style judge or arbitrator responding to the guidance provided
by authoritative legal materials, and by common sense and justice.
For Holmes' 'bad man' is substituted the respectable man of
business, 27 for the slot-machine or the shyster is substituted the
conscientious craftsman.
Llewellyn's criticisms of Savigny and Carter are also relatively
mild. Although he considered Carter to be even more extreme than
Savigny in his opposition to codification, Llewellyn treated him
sympathetically, praising in particular The Ideal and the Actual in
the Law. 28 In a perceptive article in the Encyclopaedia of the Social
Sciences he gives a succinct summary of what, in his view, were the
strengths and weaknesses of Carter's ideas. It also contains in a nut-
shell most of Llewellyn's own general ideas on codification :

The chief virtue of Carter's position is his insistence on the huge scope of
extra-official controls in law and on the limitations set thereby to official
action. The chief vice of the positive analysis is oversimplification. Carter
deliberately disregards, for example, the whole law of governmental
organization and of legal procedure; he overlooks modem administrative
regulation. The multiformity and conflict of subgroup 'customs' is hope-
lessly scanted. The realm of flux in which there is no custom and in which
officials really create; even more the realm of tolerance in which official
determinations, though they counter existing custom, are carried through;
and finally the practical effects of judicial 'tyranny' - these are too detailed
for the vague vastness of Carter's picture. Negatively, his argument attacks
not codification as it is- a fresh and fertile start for case law, which at its
best already incorporates existing tendencies - but the utopian ideal of the
blinder advocates of codification: a closed system, 'certain' -and dead. 18
That Llewellyn, while actively involved in a codification project,
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 31 I

was able nonetheless to deal with codification controversies with

some detachment was due in part to the fact that his approach to
codification was essentially pragmatic. Abstract discussions of the
advantages and disadvantages of codification did not appeal to
him. Nor did discussions about the 'proper' meaning of the word
'code'. Still less did he accept the idea that there was one model
form of 'code' by which all codes should be judged- an idea which
seems to underly some criticisms of the Uniform Commercial Code
made by civil law trained commentators. His plans for the Uniform
Commercial Code were formulated with reference to a particular
problem which arose in a specific context at a particular moment in
history.
It has been pointed out that the Uniform Commercial Code is not
a 'Commercial Code' in the continental sense. Certainly if one
contrasts it with, for example, the French Commercial Code, there
are certain important differences. First, the latter presupposes a more
general civil code, which is applicable both to fill in gaps and to
assist in interpretation. It has been said authoritatively that a 'civil
code must remain the general private code, the code of commerce
being limited to applications and derogations'. 80 The Uniform
Commercial Code on the other hand, while presupposing much of
the general body of common law doctrines of contract, and explicitly
providing for supplementation from principles of common law and
equity,81 purports to be the governing instrument over a wide area
of law. In certain cases it explicitly diverges from common law
contract rules and no attempt has been made deliberately to frame
the Code in traditional contract terms. Indeed it has been suggested
that the Code undermines some long-established contract principles
and that it is stimulating American lawyers to reformulate traditional
conceptions of contract to fit the Code rather than vice versa. 82
Thus the Uniform Commercial Code to a large extent is an indepen-
dent piece of legislation in contrast with the French Commercial
Code which is just a part of an integrated system of codes. Secondly,
the French Commercial Code is 'commercial', in the sense that it
governs merchants (commerfants), that is to say persons who are
principally engaged in 'acts of commerce'. French commercial law
provides for different procedures from civil law for special tribunaux
de commerce and makes special provisions with relation to such
matters as proof, rates of interest, and bankruptcy. 88 The Uniform
Commercial Code, on the other hand, makes no provision for such a
312 KARL LLEWELLYN AND THE REALIST MOVEMENT

court nor is its application restricted to contracts between merchants,

although in some circumstances more arduous standards are imposed
upon merchants and there are some special provisions relating to
them. But it does little to undermine the long established integration
of the common law and the law merchant. Thirdly, and most
important of all, the Code was drafted in the expectation that it
would be interpreted by common law trained lawyers and judges
and in the hope that they would adopt 'the Grand Style' in their
approach to it. 84 Although it is notoriously dangerous to generalize
about differences between 'common law' and 'civil law' techniques,
one can state with confidence that there would have been important
differences both in style and arrangement if the image of the typical
prospective interpreter in the mind's eye of the draftsman had been
a civilian rather than, for example, a judge of the New York Court
of Appeals.
This leads on to the final point. There are some features of the
Code, such as the emphasis on 'good faith' (bonne foz) and uncons-
cionability, which will be familiar to a continental jurist; Llewellyn's
attitude to commercial usage has echoes in Ehrlich, and, in general,
the Sales Article is closer to the 1939 draft of the Uniform Law on
International Sale of Goods than was the Uniform Sales Act and
there are other general indications of Llewellyn's familiarity with
civil law. The Code is, however, generally recognized to be a
'common law code' and for this it has been criticized on two main
grounds: first, it has been suggested that not enough systematic
comparative study was undertaken in respect of the continental ex-
perience of codification of commercial law ;35 and secondly, an
opportunity was missed in preparing the Code to bring about a
simultaneous unification at international as well as at national
levels. During the drafting of the Revised Uniform Sales Act, Ernst
Rabel, who was officially connected with the Rome Institute's
project for the unification of the International Law of Sales, wrote
to Llewellyn and to Lewis urging that this opportunity should be
taken. His plea appears to have fallen on deaf ears. 36 It is particu-
larly interesting that Rabel was one of the few critics to argue that
the draftsmen of the Code were not being radical enough. While
praising the Revised Uniform Sales Act (Draft No. 1) as 'an out-
standing work' and noting that it approached the views of the Rome
Institute in a number of important particulars,S 7 he regretted that
no serious attempt had been made to marry the two drafts:
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 313
In the points in which the Draft and the Project differ, the preferable
solution is probably sometimes to be found in the one sometimes in the other
text. They do not differ because of national peculiarities, but because of lack
of co-operation. sa
Rabel argued that the project differed from the RUSA draft in
having 'very consciously worked out a method to reach the nearest
possible legal equivalent to the commercial conceptions'.39 In short,
his argument was that the main remaining differences between the
two drafts was that the Rome Project had been more systematic in
its attempt to achieve an identical goal with that of the Code, the
marrying of commercial law and commercial practice.

'IF I WERE A CHEQ,UE'- THE EMPIRICAL BASIS OF

THE UNIFORM COMMERCIAL CODE
If a statute or code is viewed primarily as an instrument for
encouraging, discouraging or facilitating certain kinds of behaviour,
that is to say as a means of achieving certain effects, it can be
argued that a first step in evaluating it should be to try to find out
what effects the law has in fact had, desired or otherwise. Similarly,
in drafting such legislation a natural starting-point, in this view,
would be to obtain as comprehensive and reliable a picture as possible
of the range of behaviour to be covered, of its social context and of
relevant trends and conditions, and to make projections as to what
measures are most likely to maximize the desired result with the least
risk of producing undesired side effects. The study of conditions,
trends and effects is a form of empirical inquiry. Such legislative
'fact research' has not yet become a regular feature of law-making or
legal research either in the United Kingdom or the United States,
although there has been some movement in this direction in recent
times. The reasons for the neglect of empirical research may include
failure to perceive the relevance of factual data to the making and
evaluation of laws, the expense in time and money involved in
collecting data, the alleged tedium or lack of glamour of much of this
kind of research, and a tendency on the part of participants in law-
making processes to dismiss such work as not being feasible without
bothering first to define what might be desirable. 40 This latter
tendency is associated with a general willingness to accept as an
adequate substitute the undifferentiated opinion-evidence of ex-
perts, interest groups and others.
314 KARL LLEWELLYN AND THE REALIST MOVEMENT

It is sometimes suggested that the Uniform Commercial Code sits

too comfortably within the Anglo-American tradition of 'unscien-
tific' law making. In so far as 'realism' involves some commitment
to relatively systematic collection of data, this suggestion raises an
important doubt about the relationship between Llewellyn's
practice in respect of the Code and the jurisprudential ideas that he
preached in other contexts. It also raises some interesting questions
about the relevance and utility of empirical research as a basis for
law-making.
It may help to clarify some of the issues if we start by postulating
two crude theoretical models of recommended procedures for the
preliminary phases of law-making and law reform. On the one hand
there could be 'the committee room model': a committee or commis-
sion, consisting mainly of 'experts', all or most of whom are lawyers,
considers an area of law which is thought to be in need of reform and
makes recommendations which may or may not be embodied in the
form of a draft bill. Typically, 'evidence' is invited from interested
parties, from experts and, sometimes, from the public at large. Such
evidence may be mainly factual, but may well be a mixture of fact,
opinion and prescription, based on the experience of the witnesses,
their conception of their own or the public interest, and judgments
by lawyers about what would be technically feasible and desirable.
Typically, little or no systematic research is undertaken by the
committee itself and, if research is undertaken, it is nearly always
armchair or library research, which rarely goes further than an
inquiry into the existing state of the law. Typically, systematically
gathered empirical data are not considered as a necessary basis
for making recommendations and there is generally a faith in the
adequacy of experience and common sense to provide sufficient
relevant information which is sufficiently reliable. Rigorous empirical
research involving accepted social science techniques is not
considered necessary or even relevant.
This model can be contrasted with the 'scientific model', which is
implicit in the idea of a 'Science of Legislation'. Leaving aside for
the moment questions of feasibility and cost, we can state the ideal
to be scientifically validated data concerning all matters which are
relevant to the subject of reform and which are susceptible to
empirical investigation. Although common sense would indicate
the exploitation of available sources of information, special
research would typically need to be undertaken, involving careful
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 3I5

planning and rigorous procedures. Research and prescription would

be clearly differentiated, and the 'information' provided by inter-
ested parties would be treated with especial caution. Even where
practical obstacles would prevent the collection of all the desired
data, the delineation of what information might be relevant and
useful involves a more arduous intellectual procedure than is charac-
teristic of the committee-room model.
If these are fair constructs, then it is also fair to say that more often
than not the Anglo-American tradition has approximated more
closely to the committee-room model than to the other.u
A possible charge against Llewellyn would appear to be that
whereas his theoretical ideas committed him to looking towards the
'scientific model', in respect of the Code he made no serious attempt
to break away from the committee-room pattern. One critic
concedes that he brought to bear 'a rich but unrigorous' experience
of business life! 2 but implies that the Code is just one example of
the failure of realists, such as Corbin and Llewellyn, to break free
from the library-bound, case-oriented tradition of the common law.
As a preliminary to examining possible defences against this
charge, it is relevant to recall Llewellyn's attitude to the scientific
analogy in legal research. This can be summarized in three proposi-
tions: the empirical study of law as a branch of behavioural science
is still only a 'pre-pre-science' ;41 'knowledge does not have to be
scientific to be useful and important' ;•• and the 'scientific analogy'
can tempt people to try to run before they can walk; in some legal
contexts this 'is like using seven-place logarithms to work out the
rough carpentry of a building whose parts are being measured by
thumb-joints-a different man's thumb-joint for each measure-
ment'.•3 At this stage of the development of legal sociology, it is
unreasonable to ask of law-makers that they should do more than
produce rough carpentry. The scientific model might provide an
ultimate goal, but it may be inappropriately seductive at this
early stage, especially in relation to practical activities.
Thus, questions of feasibility apart, Llewellyn was not necessarily
predisposed to a 'scientific' approach to the Code. But this in itself
does not constitute a complete defence to charges that his actions
were inconsistent with his theories and that the Code did not have
an adequate empirical base. Llewellyn does not seem to have antici-
pated this kind of criticism and so he is not his own advocate in the
case that is presented here.
316 KARL LLEWELLYN AND THE REALIST MOVEMENT

The first line of defence would be that some research was in fact
undertaken. However, it must be conceded that there was virtually
no systematic project research of the kind postulated by the
scientific model. There were no orderly research designs, disciplined
sampling or carefully tested questionnaires. 46 Such fieldwork as
was done tended to be ad hoc; Llewellyn revisited the National City
Bank to observe how bank collections were transacted; Mentschikoff
investigated brokerage practices for Article 8; Gilmore, Dunham
and Leary all made forays to various institutions to find out how
particular transactions were carried out in practice. But fieldwork
was the exception. Where, then, did the draftsmen purport to obtain
information about business practice and other relevant matters? It
is generally conceded that Llewellyn's own knowledge and under-
standing of many phases of business were truly extraordinary. 41
His two years with the National City Bank had laid the foundation:
not only had he been involved in numerous transactions, but he had
also made a point of visiting every part of the bank to see each phase
of its activities for himself. Subsequently, for over thirty years he
had specialized in the field of commercial law and- and this is
perhaps the crux of the matter- he was fascinated by the subject
and his interest in the minutest detail of even the most mundane
type of transaction was quite insatiable. In reading cases, in visit-
ing institutions, in talking to bankers, in thinking about problems,
his preoccupation was always with patterns of practice, both in their
daily operation and as illuminated by crises. After meetings of Code
committees he could be seen in the bar cross-examining disting-
uished bankers or businessmen tenaciously and with a sensitive ear
always for the nonfunctional or the improbable or 'the beautiful'.
His questioning tended to be specific, guided principally by a
concern with function and process. 'If I were a cheque and I arrived
in your bank where would I go? ... What would be done to me
first? Why? .. .'. If Llewellyn's methods were unrigorous, his know-
ledge of business practice was reputedly rich in insight, 'feel' and in
detailed information.
A second source of information was reported cases. A social
scientist may be sceptical about, but cannot dismiss entirely,
Llewellyn's claim that he learned a great deal about commercial
life from reading the law reports. Again it must be remembered that
his approach to the reading of cases was unusual, especially as
regards concentration on the facts: who were the parties? What
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 3I7

did they do when? What happened? How typical was this situa-
tion? Why was there a dispute? As with the related methods
employed in The Cheyenne Way, his technique of reading cases
could not on its own be a satisfactory source of empirical
information. But as a starting point for investigation or as a means
of supplementing and refreshing already compendious knowledge
the law reports are rich, digestible and, above all, easily accessible.
A third source of information was the 'floor' of the NCC, which
brought together an extraordinarily wide range of practical ex-
perience, from small-town lawyers from Montana to a variety of
types of practitioners from the large cities. One of the main func-
tions of holding full meetings of the NCC and ALI to discuss drafts
was to test the factual assumptions on which each section was based.
The standard model for presentation was said to be: this is the
factual situation as we see it; these are the policies involved; this is
our proposed solution. 48 Thus the main factual assumptions of the
draftsmen were made explicit, and everyone present had an oppor-
tunity to test these assumptions against his own knowledge and ex-
perience and feel for the situation, and to point out discrepancies.
There is no evidence to suggest that members of the NCC suffered
from noticeable inhibitions about doing this, for they frequently
raised points concerning local practice and problems. It is also
significant that during the period of preparation of the Code the
prevailing ethos of the NCC demanded that members should partici-
pate pro bono publico and not as representatives of special
interests.49 This is an important departure from the committee
room model in which a great deal of evidence comes from interested
parties acting in a representative capacity.
Although the device of using the 'floor' of the NCC and ALI to
check the factual assumptions of the various drafts might not be as
systematic as project research, it had certain obvious advantages:
it was relatively quick and cheap; the factual assumptions being
tested were directly related to specific draft sections; and, as
participants in the law-making process, the informants were likely
to be more serious and generally more cooperative than they could
have expected to be if they had been plied with questionnaires or
interviewed by research workers.
A second line of defence is that only in certain limited respects is
detailed factual information relevant to law-making in the field of
commercial law. 30 Although Llewellyn did not talk explicitly
318 KARL LLEWELLYN AND THE REALIST MOVEMENT

in these terms, he had relatively clear assumptions about the range

and nature of the main data that would be relevant to his purposes.
In contemplating the vast panorama of commercial activity in the
United States he assumed that the first need was to establish work-
ing categories which reflected the most significant differentiations
and which would provide the main lenses for perceiving and classify-
ing situations. Within the framework of perception the most import-
ant need for detailed information concerned how transactions were
performed. Here the search was not for precise quantitative data
but rather for a reasonably accurate picture of standard practices
and of the kinds of problems that tended to recur. Precise informa-
tion about the number of cheques handled by banks, or the fre-
quency of a particular type of transaction, would in many instances
be of little or no use to the law-maker.
An anecdote pin-points one of the practical objections that can be
made against the 'scientific model'. Grant Gilmore tells of an occa-
sion when he was sent to visit a New York firm of brokers to find out
how a particular transaction was carried out on the floor of the New
York Stock Exchange. One of the partners explained to him in
great detail how it was done; then, since he had not witnessed the
transaction personally during the previous three months, he called
in one of his juniors and asked him to describe, without prompting,
how the same transaction was carried out. His description was quite
different from that of his superior. On further investigation it turned
out that shortly before Gilmore's visit there had been a strike and
during this period some corners had been cut. This simplified proce-
dure had proved to be more satisfactory than the old one and so it
had been adopted as part of the regular practice. el The intended
moral of this story is that many areas of business practice change
so rapidly that research into what happens, however rigorous and
expensive, could be useless or worse. When it is remembered that
the Code was being designed to cover an enormous variety of com-
mercial situations, in a large number of jurisdictions, and would
also have to stand the test of time, it became obvious that empirical
research into all relevant aspects of the situation would have had
to be on a gigantic scale and in any case could still only deal with
the past and the present.
It has been suggested that these points support the paradoxical
conclusion that the longer a Code is built to last, or the wider its
scope, the less is the research that needs to be done. e2 While this is
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 3I9

not based on impeccable logic, it contains a core of truth, viz. that a

legislative instrument that is intended to last a long time or to cover
a variety of situations needs to be built in such a way that it is not
dependent on precise and constant factual underpinnings. In
commercial law the 'realism' that is needed is that of a balanced
and reasonably accurate picture of the whole scene in terms of pat-
terns of practice, of recurrent problems and of projected future
trends. The precision and elegance of 'scientific' research is more
appropriate where the focus is narrower and something more
specific than a broad framework is called for. It may also be useful
where opinions and attitudes need to be investigated.
Of course, scepticism of the 'scientific model' could be carried
too far. There may have been some instances where rigorous
research procedures would have been appropriate. For example,
analysis of the comments might reveal a number of factual assump-
tions that were both capable of verification and would be more
appropriately tested by systematic empirical research than by the
methods that were in fact used. It is interesting to note, however,
that critics who have been suspicious of Llewellyn's alleged 'un-
scientific', 'impressionistic' or 'anecdotal' approach to facts have yet
to point to any major factual assumptions of the Code that were
misleading or inaccurate. Nor have suggestions been forthcoming as
to specific empirical research that might have been worth doing.
Without such concrete suggestions criticisms of the empirical base
of the Code and of Llewellyn's approach are rather hard to evaluate.
Finally, there is the question of feasibility. Even if it could be
shown that in some areas the information availal:.i.e to the sponsors
was neither sufficiently comprehensive nor sufficiently 'hard', it is
arguable that there were severe practical limitations on what they
could have done to remedy the situation. Here it is important to
recall the institutional context of the Code project. Before Llewellyn
had started to make plans for the Code, the NCC had become the
main sponsor. The 'treaty' with the American Law Institute was
also concluded before the working procedures had been fully
worked out. The traditional procedures of the two sponsoring in-
stitutions, although not identical with the committee-room model,
were far removed from the scientific model. While tradition did not
rigidly dictate any particular procedure for the Code, it would have
been difficult to depart significantly from the past practices of the
sponsors. Llewellyn himself, far from being dissatisfied with those
320 KARL LLEWELLYN AND THE REALIST MOVEMENT

practices, felt very much at home at meetings of the NCC and

neither he nor his colleagues seem to have been unduly worried by
the problem of obtaining the information they needed. Thus the
institutional context, reinforced by the predispositions of the Code
personnel, the pressure of time and the relative modesty of the
financing, made it virtually inevitable that empirical research on a
large scale could not have been undertaken, even if it had been
needed.
To conclude, in order to substantiate the contention that the
sponsors of the Code were at fault in not undertaking or promoting
systematic empirical research, it is submitted that the critic needs to
establish the following points : (I) that there were certain specific
questions which were capable of being answered by acceptable
methods of empirical research and to which the framers did not
have sufficiently reliable answers; (2) that such information was
necessary or important as a basis for making rational decisions in
connection with the preparation of the Code; in particular that
this kind of information would have sufficient general significance
to be of value in respect of a Code, destined to cover a wide sphere of
economic life over an extensive geographical area for a considerable
period of time; and (3) that it would have been feasible for the spon-
sors of the Code to undertake or promote such research and that the
costs in time and money would have been justified by its
importance.
The defence of Llewellyn offered here is admittedly tentative and
incomplete. It is not inconceivable that a specialist in commercial
law, familiar with the Code and with social science techniques, might
be able to suggest one or more projects which would satisfy these
criteria. However, I know of no evidence to suggest that the main
factual assumptions of the codifiers were seriously inaccurate or in-
complete.113 To date, the criticism of the Code on this count has
been insufficiently specific to raise a case to answer. It seems that
the importance of disciplined empirical research to law-making (at
least in fields such as commercial law) can easily be exaggerated by
those who accept a simple a priori model of 'scientific' law reform.
In particular, where the search is for understanding the functions of
transactions, quantitative data are likely to be of marginal utility.
It is to be hoped that a careful attempt will be made to ascertain
and evaluate the practical consequences of the Code project. Such
an investigation could contribute to the better understanding of
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 321

law-making generally. Moreover, there is, it seems, a body of

opinion which is sceptical to a greater or lesser extent about the
social and economic importance of the Code. For instance, I have
heard the view expressed informally that the Code is 'a gigantic
irrelevance'. It is rather difficult to pin down exactly what is implied
by such a judgment, but it may suggest such propositions as ( 1) that
the Code has had little or no effect on the practices of businessmen
and has had no significant economic consequences; (2) that it has
not -made the learning or handling of commercial law significantly
easier or more efficient for law students and legal practitioners; and
(3) that the Code contributed little or nothing to the solution of any
major social or economic problem of the day in the United States,
and that in this sense it is 'irrelevant'. Indeed, it has been hinted
that the Code may have been counterproductive by diverting atten-
tion, energy and resources into the production of an elephantine
and largely trivial literature and away from more 'worthwhile' pur-
suits. These charges represent an extreme and no doubt crude
version of an opinion that may be held in some quarters in American
law schools. Not unnaturally there will be many who disagree pro-
foundly with such views. It may be that a disciplined approach to
this issue would involve, inter alia, a rather complicated and elusive
form of cost-benefit analysis. It is beyond my competence even to
suggest how such an analysis might be undertaken. The purpose of
this section has been merely to draw attention to the issue rather
than to attempt to resolve it.

PURPOSE AND REASON IN THE UNIFORM

COMMERCIAL CODE

Llewellyn's teleological view of laws as instruments of policy found

clear expression in the Uniform Commercial Code. If a legislative
provision is a means to certain ends, good social engineering requires
that as far as possible the means selected should be co-extensive
with the ends; the draftsman should endeavour to give clear expres-
sion to the ends as well as the means and the interpreter must be
given every encouragement to interpret the instrument in accord-
ance with its objectives. Llewellyn put the matter as follows:
Drafting Techniques and Policies.
1. The principle of the patent reason: Every provision should show its reason
322 KARL LLEWELLYN AND THE REALIST MOVEMENT

on its face. Every body of provisions should display on their face their
organizing principle.
The rationale of this is that construction and application are intellectually
impossible except with reference to some reason and theory of purpose and
organization. Borderline, doubtful, or uncontemplated cases are inevitable.
Reasonably uniform interpretation by judges of different schooling, learning
and skill is tremendously furthered if the reason which guides application of
the same language is the same reason in all cases. A patent reason, moreover,
tremendously decreases the leeway open to the skilful advocate for persua-
sive distortion or misapplication of the language; it requires that any con-
tention, to be successfully persuasive, must make some kind of sense in terms
ofthe reason; it provid,es a real stimulus toward, though not an assurance of,
corrective growth rather than straitjacketing of the Code by way of case-
law."
Three main devices for implementing this approach were employed
in the Code: explicit rules of construction are included in Article I,
requiring interpretation of the Code in accordance with its
purposes; 55 secondly, the general objects of the Code and, in a few
instances, the specific objects of particular rules, are made explicit
in the text of the Code itself; thirdly, the Code is supplemented by
extensive Comments prepared by the draftsmen as an important
aid to interpretation. Each of these devices will be considered in
tum.

Liberal interpretation made mandatory

The history of judicial interpretation of statutes in the common law
world is sometimes seen as a battle between 'literal' and 'liberal'
approaches to interpretation. These different approaches have
found expression at a general level in the apparently conflicting
principles of the Literal Rule and the Mischief Rule or the Rule in
Heydon's Case. 56 A third principle, 'the Golden Rule', prescribes
that when a literal interpretation would lead to an absurdity, then
the courts may depart from the literal meaning of the words. The
Code is most unusual in that it requires the adoption of a 'liberal'
aproach. Section 1-102(1) reads:
This Act shall be liberally construed and applied to promote its under-
lying purposes and policies. &7
This instruction is amplified in the accompanying comment:
This Act is drawn to provide flexibility so that, since it is intended to be a
semi-permanent piece of legislation, it will provide its own machinery for
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 323
expansion of commercial practices. It is intended to make it possible for the
law embodied in this Act to be developed by the courts in the light of un-
foreseen and new circumstances and practices. However, the proper con-
struction of the Act requires that its interpretation and application be
limited to its reason.... The Act should be construed in accordance with
its underlying purposes and policies. The text of each section should be read
in the light of the purpose and policy of the rule or principle in question,
as also of the Act as a whole, and the application of the language should be
construed narrowly or broadly, as the case may be, in conformity with the
purposes and policies involved. a •
A similar explicit provision is made in respect of remedies by Section
I-106:
The remedies provided by this Act shall be liberally administered to the end
that the aggrieved party may be put in as good a position as if the other
party had fully performed but neither consequential nor special nor penal
damages may be had except as specifically provided in this Act or by other
rules oflaw. 68
None of the provisions requiring liberal interpretation of the Code
had any counterparts in prior Uniform Acts; indeed they must be
almost unique in Anglo-American legal history.

Explicit statements of policy incorporated in the Code

Having required that the Code be interpreted in accordance with
its policies, the draftsmen proceeded to make these policies explicit.
The general objects are stated in s.I-102(2) which was quoted
above. Where appropriate, 'purpose' was articulated in specific
rules. A good example of a provision which provides for discretion
to be exercised by commercial institutions within the limits of a
general and clearly stated purpose is s.4-I07(1), dealing with bank
deposits and collections:

(1) For the purpose of allowing time to process items, prove balances and
make the necessary entries on its books to determine its position for the day,
a bank may fix an afternoon hour of two P.M. or later as a cut-off hour for
the handling of money and items and the making of entries on its books. 8 o
In fact, only sparing use was made of the device of incorporating
specific statements of purpose in the rules themselves. There are
several good reasons for this. One disadvantage of detailed state-
ments of purpose is that they tend to lengthen and complicate the
text of the instrument; one of Llewellyn's objectives was to produce
324 KARL LLEWELLYN AND THE REALIST MOVEMENT

a text that would be simple, succinct and easy to read. Often,

purpose can be easily inferred from the provision, and spelling it
out would be otiose. Furthermore, as Patterson pointed out in his
submission to the New York Law Revision Commission, articulation
of purpose can create difficulties, where otherwise none would have
existed. He cited as an example his experience with the Tentative
Draft of the New York Insurance Law Revision in 1937:

The Comments, intended to explain simply why some changes were being
made, aroused nearly as much opposition as the statute itself. In the
numerous subsequent published drafts no comments were given. The
revision was enacted in 1 939· 8 1

Patterson's remarks were directed particularly against 'official' com-

ments. He preferred reasons to be indicated in the text, if possible.
But his arguments apply with even greater force to incorporating
explicit statements of reasons as part of the text. The danger is not
only that reasons may arouse controversy during the course of enact-
ment, but also that they may sometimes hinder rather than aid
interpretation. The basic reason for this is simple. The ends are not
necessarily co-extensive with the means. Statements of purpose are
at least as susceptible as are statements of 'substantive' rules to
vagueness, ambiguity, obscurity, difficulty of reconciliation with
other statements, and so on. The task of the interpreter is first and
foremost to interpret the instrument of the policy rather than the
policy itself. Llewellyn, as a protagonist of a liberal approach, went
no further than advocating that statements of purpose should be
aids to interpreting the instrument. 62

Purpose to be inferred from choice of language and articulation of

situation sense
Despite the sparing use made of explicit statements of purpose, it
is clear that the 'rule with a singing reason' was the basic model for
the draftsmen. 68 An alternative technique to explicit statements
of purpose 'consists in making the purpose of a provision appear
on its face by the choice of language and by the organization of the
thought in the light of the situation'. 64
This can be illustrated by reference to the special provisions con-
cerning merchants in Article 2. In respect of a number of matters,
for example the statute of frauds, firm offers and warranty of
merchantability, 'merchants' are put in a special position. The
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 325
reason for this is that those who hold themselves out as having know-
ledge or skills peculiar to practices involved in a transaction, on the
one hand need less protection from formalities and on the other
hand should not be allowed to take advantage of the ignorance or
lack of skill of others. Whereas the Sales Article requires honesty in
fact of everybody in respect of performance and enforcement of
sales contracts, a higher standard is demanded of merchants, viz.
observance of reasonable commercial standards of fair dealing for
the trade concerned. 85
The basic reason for differentiating professionals from others is
incorporated in the definitions of 'merchant' and transactions
'between merchants' (2-104(1) and (3) ), so that the reason for the
differentiation and the criterion of differentiation are made co-
extensive. The reason is thus apparent on the face; it is further
emphasized by the Comment on section 2-104, which begins:

This Article assumes that transactions between professionals in a given field

require special and clear rules which may not apply to a casual or in-
experienced seller or buyer. It thus adopts a policy of expressly stating rules
applicable 'between merchants' and 'as against a merchant' wherever they
are needed instead of making them depend upon the circumstances of each
case as in [the Uniform Sales Act and The Uniform Bills of Lading Act]. 16

'Merchant' is defined in terms of skills and knowledge in a very

general manner; the Comments make it clear that for different pur-
poses, different classes of people would be counted as 'merchants'.
Thus the warranty of merchantability (s.2-3 14) is only implied 'if
the seller is a merchant with respect to goods of that kind'; but for
the purposes of the sections67 which are based on acquaintance
with normal business practice, no such limitation is placed on
'merchant', so that a bank or even a university might be included in
the category for the purposes of a mercantile transaction in which
they are regularly involved. However, 'a lawyer or bank president
buying fishing tackle for his own use is not a merchant'. 68
The treatment of 'merchants' in the Sales Article is different from
their treatment in other articles. 'This reflects a functional differ-
ence in situation. In sales the professional can be either a buyer or a
seller, and so the linking of honesty and commercial reasonableness
is made general.' 69 But, for example, in respect of secured trans-
actions the professional is typically the lender, and in respect of
letters of credit and bank collections 'the professional' tends recur-
326 KARL LLEWELLYN AND THE REALIST MOVEMENT

rently to be at the same end of the transaction. In these articles

special provisions concerning standards of behaviour for profes-
sionals are spelled out in detail. Thus the provisions in the Sales
Article in respect of 'merchants', read with the Comments, illustrate
Llewellyn's ideas about good rules: purpose is articulated, scope is
as far as possible made coextensive with purpose and is related to
typical recurrent situations (situation-types), and the boundaries of
application are drawn in broad general terms, 'using a zone rather
than a surveyor's line to border the rule'. 70 The courts are given
clear and articulate guidelines, but are left discretion in respect of
application to particular situations, and flexibility is provided by
incorporating criteria which will have different content in different
types of situations, for example the standards of a particular trade
and 'knowledge or skill peculiar to the practices or gQOds involved
in the transaction' .11

The Comments
The very full commentary which accompanies the official text is the
main device for articulating and explaining the policies of the Code
provisions. The correct designation is 'comments of the National
Conference of Commissioners on Uniform State Laws and the
American Law Institute' .72 The term 'official comments' is some-
times used, but this may be misleading in that they have been
formally adopted neither by the floors of the sponsoring bodies nor
by legislatures which have enacted the Code and in some cases
were not even made available to the legislators. For the sake of
brevity they will be referred to here as 'The Comments'. Although
not entirely unprecedented, they are sufficiently unusual to deserve
detailed consideration.
A variety of devices for clarifying 'the intention of the legislature'
in respect of statutes has grown up in different jurisdictions. The
Preamble in English statutes up to the end of the nineteenth century,
travaux preparatoires in France and some other continental
systems, explanatory memoranda which accompany bills in
Denmark and the Republic of Ireland, are important examples. 78
In the United States, as might be expected, various devices have
been employed from time to time. Prior to the Uniform Commercial
Code it had been the practice of the NCC to publish relatively
brief 'commissioners' notes' to accompany any uniform acts that
they promulgated. These have been given a similar status to reports
JURISPRUDENCE 011 THE UNIFORM COMMERCIAL CODE 327
of commissions as aids to interpretation. 7 ' The history of the first
Uniform Sales Act was very much in the minds of the draftsmen of
the Code. 71 Williston's treatise, first published in 1909, three years
after the Uniform Sales Act was first promulgated, had in practice
exerted such an enormous influence over the interpretation of the
act that it had amounted to 'the delegation to private persons of
essentially legislative power'. 78 This was the main reason for the
decision to have 'official' comments accompanying the Code.
Llewellyn's ideas on the subject are to be found in a draft comment
on section I of the Revised Sales Act:
Under Subsection (2) the courts are expressly authorized to consult the
Comments in interpreting and applying the principles of the Act. The
Comments thereby acquire a status more than equivalent to that of a
Committee Report on the basis of which a proposed bill has been enacted
by the legislature. Sustained effort has been made to make the reasons and
purposes of the Act apparent on the face of the text wherever possible. The
Comments are further designed to state with clarity and precision the intent
of each section and to integrate the Act as a whole by pointing out the
relationship between one section and another.
The purpose of the Act as to uniformity is restated in order to continue
the policy of the Original Act, Section 74, and to emphasize the special
recognition long accorded by the courts to decisions under the Uniform
Commercial Acts which have been handed down by tribunals of co-
ordinate jurisdiction. The use of the Comments as a yardstick of legislative
intent should further promote the uniformity of interpretation of the Act. 7 7
In an 'Informal Appendix' to the Third Draft of the Revised
Uniform Sales Act, Llewellyn says of some sample draft comments:
The Official Comments put no queries and canvass no doubts. They aim at
straight exposition of purpose and effect of the section and of its relation to
the prior law and the other portions of the Act. The problem of bulk relates
only to how far the Comments shall go into specific illustration and specific
case-material. 78
After an ambitious start, a gradual whittling down of the scope
and status of the Comments took place. In 1951, at the suggestion
of the ABA section, two provisions were added to make clear that
'if text and comment conflict, text controls' and that 'prior drafts
of text and comments may not be used to ascertain legislative
intent'. 79 Early drafts included a section which read as follows:
The Comments of the National Conference of Commissioners on Uniform
State Laws and the American Law Institute may be consulted in the
328 KARL LLEWELLYN AND THE REALIST MOVEMENT

construction and application of this Act but if text and comment conflict,
text controls.•.. 8 0
These three provisions were dropped in 1956, after criticism by the
New York Commission, who objected to deviation from established
practice in respect of legislative history and considered that the
provision allowing the reference to Comments gave them undue
weight, despite the fact of its being only permissive. 81
The style of the final Comments represents a compromise worked
out over a long period of drafting and redrafting, especially in
respect of the Sales Article. Llewellyn's first attempts tended to be
lengthy and not to follow a set pattern. Llewellyn and Mentschikoff
expended an enormous amount of time on the first drafts of the Sales
Comments during the period 1943-5. As was acknowledged later,
a great deal of effort could have been saved had the drafting of text
and Comments been done concurrently. 82 This procedure was
sometimes followed in respect of other articles. The final drafts of
the Sales Comments are much more compressed than the first ones.
In their final form the Comments have a standard format. The
starting point is a reference to 'Prior Uniform Statutory Provision';
where there is none this is indicated. The nature and purposes of
any change from the prior law are then analysed or the purposes of
the provision are discussed. There follow, where appropriate,
'Cross References' and 'Definitional Cross References', which con-
siderably facilitate the use of the Code, even though the former
cannot be relied on to be exhaustive. The Comments vary consider-
ably in length; they tend to be more detailed than comparable
devices used elsewhere, but generalization on this point is
dangerous. 83 It is difficult to make any general remarks about style,
except perhaps to reiterate that the language is deliberately simple
and articulation of purpose is the outstanding characteristic. In the
1962 edition of the Code, it has been estimated that the Comments
stand to the text in a ratio of four to one. To supplement the
extracts already quoted, it may help to quote one of the shorter
comments in toto:
Section g-I I I. Applicability of Bulk Transfer Laws.
The creation of a security interest is not a bulk transfer under Article 6 (see
Section 6-103).
Comment
Prior Uniform Statutory Provision: None
Purposes:
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 329
The bulk transfer laws, which have been almost everywhere enacted, were
designed to prevent a once prevalent type of fraud which seems to have
flourished particularly in the retail field: the owner of a debt-burdened
enterprise would sell it to an unwary purchaser and then remove himself,
with the purchase price and his other assets, beyond the reach of process.
The creditors would find themselves with no recourse unless they could
establish that the purchaser assumed existing debts. The bulk transfer laws,
which require advance notice of sale to all known creditors, seem to have
been successful in preventing such frauds.
There has been disagreement whether the bulk transfer laws should be
applied to security as well as to sale transactions. In most states security
transactions have not been covered; in a few states the opposite result has
been reached either by judicial construction or by express statutory pro-
vision. Whatever the reasons may be, it seems to be true that the bulk
transfer type of fraud has not often made its appearance in the security
field: it may be that lenders of money are more inclined to investigate a
potential borrower than are purchasers of retail stores to determine the true
state of their vendor's affairs. Since compliance with the bulk transfer laws
is onerous and expensive, legitimate financing transactions should not be
required to comply when there is no reason to believe that other creditors
will be prejudiced.
This section merely reiterates the provisions of Article 6 on Bulk Transfers
which provides in Section 6-103(1) that transfers 'made to give security for
the performance of an obligation' are not subject to that Article.
Cross Reference:
Section 6-xog(x).
Definitional Cross Reference:
'Security interest'. Section 1-201

The main function of the Comments is as an aid to interpretation,

which avoids some of the rigidities of a tight style of drafting. Some
doubts have been expressed about their juridical status. 'How high',
asks Honnold 'can the comments lift themselves by their own boot-
straps?'84 It is relatively easy to give a common sense answer at a
general level. The Comments have three great advantages: they
bear the imprimatur of those responsible for the Code and so they
have strong claims to be authoritative; they were prepared concur-
rently with the drafting of the Code, and so are not vulnerable to
any suggestion of hindsight or second thoughts; they are, above all,
accessible and easy to use. Beyond that they stand on their merits.
No rule prescribes that they must be followed; the courts may use
them, but how much weight they attach to them is at their dis-
cretion. In practice, as was to be expected, judges have referred to
330 KARL LLEWELLYN AND THE REALIST MOVEMENT

them extensively, have usually followed them, and have only

occasionally deviated from them85 As decisions interpreting the
Code and secondary commentaries proliferate the comments may
decline in importance to some extent, but they may confidently be
expected to continue to hold their own as a prime aid to inter-
pretation of the Code.
In addition to narrowing the range of doubt and furthering
uniformity of interpretation, the Comments serve a number of
other functions. They help to integrate the Code; they provide an
introduction which makes it more intelligible to the lawyer, the
law student and the layman; the cross-references make fol' speedy
and efficient use; the references to the prior uniform acts assist in
the tracing of legislative history. Their value is widely acknow-
ledged. Such criticism as has been levelled at them has mainly con-
cerned detail, or omissions, or execution, or blames them for failing
to resolve all doubts, rather than the idea of having comments at
all. In his fair and balanced critique, Skilton, whilst complaining of
'qualitative and stylistic unevenness', 88 concluded that they
represent a net gain, indeed, that 'study of the Comments is in-
dispensable to a knowledge of the Code'.87

CATEGORIES88
The main organizing concept: 'movement of goods'
It is commonly said that the Code is 'functionally organized'. Pre-
sumably this means that its principle social and economic function
is to provide a legal framework for 'the movement of goods, the
payment therefor, and the financing thereof'. 89 As can be seen
from the memorandum quoted above, this was the principal
criterion for determining the ground to be covered. Sales were taken
to be the key transaction in the flow of goods from manufacturer
to consumer and the Sales Article was treated as the central
pillar of the Code. Secured transactions, commercial paper, bank
deposits and collections and letters of credit are all functionally
important for paying for and financing the flow of goods. But, as
Schlesinger remarked, '. . . . the draftsmen, for good practical
reasons, did not ride the functional horse through thick and thin'. 90
Insurance was not included, mainly because some of it was politi-
cally controversial. Similarly, commercial codes in civil law countries
JURISPRUDENCE OP THE UNIFORM COMMERCIAL CODE 331
treat of 'commercial agency', but agency is not limited to com-
mercial situations and the civilians have had many difficulties in
fitting commercial law into the framework of the general law ;91 in
the Code this problem is avoided by leaving agency to the general
law. 92 Conversely, not everything included in the Code is function-
ally limited to the movement of goods. As was often pointed out in
discussion, letters of credit, cheques and other forms of commercial
paper are used for a wide variety of purposes other than financing
'commercial' transactions. It was also argued that investment
securities have a rather thin functional justification for inclusion in
the Code, but their inclusion was justified on the ground that they
had been dealt with in the earlier uniform legislation which was
being repealed. Thus it is clear that while the Code is for the most
part organized round the movement of goods, by no means all
branches of law relevant to this function are included, and there are
areas covered by the Code which related to other spheres of econo-
mic activity. It is clear from the records that the coverage of the
prior uniform acts and political expediency played an important
part in the determination of the scope of the Code, which can
accordingly be said to have been governed by pragmatic rather
than by dogmatic functionalism.

Replacing an over-broad category by a number of narrower

categories
The de-emphasis of 'title' in the Sales Article is, of course, the
principal illustration. The first Comment on Article 2 states:
The arrangement of the present Article is in terms of contract for sale and
the various steps of its performance. The legal consequences are stated as
following directly from the contract and action taken under it without
resorting to the idea of when property or title passed or was to pass as being
the determining factor. The purpose is to avoid making practical issues
between practical men turn upon the location of an intangible something,
the passing of which no man can prove by evidence and to substitute for
such abstractions proof of words and actions of a tangible character. • •
Under the 'title theory' the procedure was to start by asking when
title passed from seller to buyer and upon this single issue to pur-
port to determine questions relating to such matters as risk of loss,
insurability, the right to recovery of the price, the rights of creditors
and liability to tax. In face-to-face transactions, for example, a sale
of a horse by Farmer A to Farmer B, fixing the moment of time that
332 KARL LLEWELLYN AND THE REALIST .MOVEMENT

'title' passed was not necessarily difficult; but in the modern com-
mercial context there are typically a number of stages in the journey
from manufacturer or producer to ultimate consumer. Thus, to use
Malcolm's examples, consider the difficulty of determining when
title passes in the case of wool in the movement 'from grower to
commission agent to commodity credit corporation, to mill, to
wholesaler, to retailer. Or consider passage of title to natural gas
moving by pipeline from producer, to gas company to New England
distributor, to householder.'u
In the Uniform Commercial Code the allocation of risk, the
availability of remedies, and a number of other matters which
traditionally turned on passing of 'title', are made the subject of a
series of specific rules which purport to reflect widespread practices
and expectations of businessmen. For instance, risk of loss is
governed by detailed rules which make no mention of 'title'. Section
2-509 deals with risk of loss in the absence of breach:
( 1) Where the contract requires or authorizes the seller to ship the goods
by carrier
(a) if it does not require him to deliver them at a particular destination,
the risk of loss passes to the buyer when the goods are duly delivered
to the carrier even though the shipment is under reservation (Section
2-505); but
(b) if it does require him to deliver them at a particular destination and
the goods are there duly tendered while in the possession of the
carrier, the risk of loss passes to the buyer when the goods are there
duly so tendered as to enable the buyer to take delivery.
(2) Where the goods are held by a bailee to be delivered without being
moved, the risk of loss passes to the buyer
(a) on his receipt of a negotiable document of title covering the goods; or
(b) on acknowledgement by the bailee of the buyer's right to possession
of the goods; or
(c) after his receipt of a non-negotiable document of title or other written
direction to deliver, as provided in subsection (4)(b) of Section 2-503.
(3) In any case not within subsection (1) or (2), the risk of loss passes to
the buyer on his receipt of the goods if the seller is a merchant; otherwise the
risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary agreement of the
parties and to the provisions of this Article on sale on approval (section 2-
327) and on effect of breach on risk ofloss (section 2-510). 85
In the Uniform Commercial Code 'title' is reduced in importance,
but is not eliminated (s.2-401). Llewellyn realized that it still had a
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 333
general residuary function and that there would continue to be
rules outside the Code, such as public regulations which might make
particular consequences turn on the passing of title (Comment on
2-401). In Section 2-40I an attempt is made to make it easier to
determine when title has passed in situations where this becomes a
material issue. In the first instance this is a matter for explicit agree-
ment between the parties, but in the absence of such agreement
the section makes detailed provisions which as far as possible are
related to some specific action of one or other of the parties. For
example, where delivery is to be made without moving the goods
and if the seller is to deliver a document of title, title passes at the
time and place of delivery of such document, unless otherwise ex-
plicitly agreed (2-401 (3) ).96
Replacing a series of narrow categories by a single broad category-
Article 9
In his theoretical writings, especially in his younger days, Llewellyn
was so concerned to emphasize the value of narrow-issue thinking as
a weapon against over-generalization that he risked creating the
impression that he discounted the value of soundly based general-
ization. Any doubts on this score may be resolved by a brief look
at Article g, which deals with secured transactions. The old law
governing secured transactions was notoriously complicated and
technical. A series of different devices had grown up independently
of each other at different times in an uncoordinated fashion :
pledges, warehouse receipts, field warehousing, chattel mortgages,
conditional sales, trust receipts, factors' liens, a.Ssignment of accounts
receivable, and leases with or without option to buy. Each of these
had its own formalities, its own requirements for recording or filing,
and to a large extent, its own rules; yet all of them were related to a
single broad function, viz. the facilitation of credit and the securing
of payment or performance of an obligation.
The main defects have been well summarized by Malcolm:
Consequently today, within a single state, the means of obtaining security
is simply a patchwork of odd devices that are replete with variations with
little logical sense; gaps that are hard to fill; unnecessary duplications; and
traps for the unwary. When there is added to this confusion within a single
state a very great variation in rules in almost every one of the forty-eight
states you have confusion worse confounded. The result simply means great
inefficiency in the giving and taking of security, which inefficiency is paid
for by the business community and the public as a whole. n
334 KARL LLEWELLYN AND THE REALIST MOVEMENT

The solution adopted by the draftsmen is based on the perception

that, despite the wide variety of situations covered, at the basis of
nearly all transactions involving security in personal property there
are two principal objectives: first, protecting a creditor or secured
party against the risk of insolvency or bankruptcy or dishonesty of
the debtor (this is achieved in the Code by putting the secured
party in a priority position as against other creditors); secondly,
providing simple means of notifying competing creditors of the
security interest. Subsidiary policies adopted in the article are pre-
vention of monopoly of a debtor by a single lender, and preventing
overreaching of a debtor by a secured lender. 98 By keeping these
objectives clearly in mind, the draftsmen were able to achieve a
major simplification of the law within the framework of a policy of
expanding the availability of secured credit.
Article 9 substitutes a set of new categories for those of the old
law of secured transactions. The artificial distinctions between
forms of device are made unimportant and the article applies 'to
any transaction (regardless of its form) which is intended to create
a security interest in personal property'. Thus, for several series of
detailed rules based on artificial forms of device is substituted a
single body of general principles centering around a concept
('security interest in personal property') which is directly related to
the basic function of all these devices. The old devices are not
abolished but are all treated as security interests and the main
distinctions are made to tum on the function of the financing and
the nature of the collateral. The broad effect is to provide for a
single type of security interest, created by contract, involving a
uniform filing procedure (where appropriate) and giving uniform
protection to debtors, roughly equivalent to that afforded to a
mortgagor.
A completely uniform set of rules was not possible. But such dis-
tinctions as are made in the article are, for the most part, also
'functionally' based. For old distinctions based on the form of the
device are substituted others which reflect operative differences in
the kind of property involved or the use to which it is put. The first
distinction is between 'goods' and rights embodied in various types
of paper, such as negotiable instruments and documents of title.
Then there are contract rights, accounts and a residuary category of
general 'intangibles'. The main classification of goods is between
those which are in the process of distribution ('farm products' and
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 335
'inventory') and those which have come to rest ('consumer goods'
and 'equipment'). These four categories are mutually exclusive and
the comments advise that in borderline cases 'the principal use to
which the property is put should be determinative'. 99 Thus a
private car counts as 'consumer goods', but a company car held by
a car dealer for sale would be 'inventory', as would a fleet of cars
owned by a car rental agency. 'Farm products' would be different
again. Actual differences in the nature or in the use of these goods
require some different provisions to be made in respect of such
matters as protection of buyers of collateral which is subject to a
security interest100 (9-307), in certain questions of priority,101 and
in determining the place of filing. 102 Thus as far as possible distinc-
tions have been drawn only where practical considerations dictated
and they were based along lines suggested by those very considera-
tions. Thus Article 9 seeks both to clarify and to simplify the law
and this is done by the adoption of a set of categories which are
broader and more 'functional' than their predecessors.108

The use of flexible standards

The deliberate use of flexible standards such as 'reasonableness' is a
familiar feature of legal systems everywhere. In his classic analysis
of the Barotse, Gluckman states:

Thus the law lives and develops because its key concepts, 'reasonable' and
'customary', define general standards which are applicable to social positions
and actions which are themselves only definable in similarly general terms.
The concepts are, in the usual jurisprudential terms, flexible: more specific-
ally they are elastic in that they can be stretched to cover new types of be-
haviour, new institutions, new customs, new ranges ofleeway.1oa

Extensive use of flexible standards (such as 'reasonable', 'season-

able', 'usage of the trade') is made in the Code. This is the main
device for allowing the Code to adapt to varied circumstances and
to changed conditions. The Code differs from prior legislation more
in the extent than in the manner of use of such devices.
The deliberate adoption of an 'open-ended' style of drafting,
which is sometimes contrasted with a 'conveyancing approach' ,10 5
has occasioned rather less adverse comment than might have been
expected. Nevertheless it has been argued, by commentators who
equate 'precision' with 'certainty', that the extensive use of vague
concepts in the Code will inevitably lead to uncertainty and lack of
336 KARL LLEWELLYN AND THE REALIST MOVEMENT

uniformity. 106 Such criticism was unacceptable to Llewellyn. In

the commercial field 'reasonable reckonability' of outcome was most
soundly based on the premise that in the market commercial neces-
sity generates to a large extent its own uniformities of values and
patterns of behaviour; commercial self-interest spurs most business-
men to act within widely recognized leeways of decency and
honesty: gross abuses tend to be self-defeating and can be checked
in any case by making 'honesty', 'good faith' and 'reasonableness'
the principal baselines for adjudication. Implicit in this view is a
belief that legal rules have a more marginal role to play in generating
business expectations than some critics of the Code allow and that
tight drafting will often be at least as likely to defeat commercial
expectations as to provide a basis for them. The Code is founded
not only on faith in the capacity of the business community for
satisfactory self-regulation within a framework of very broadly
drafted rules, but also on a faith in judges to make honest, sensible,
commercially well-informed decisions once they have been given
some base-lines for judgment. 107 Thus 'reckonability' can be hoped
for if judges can be expected to act in accordance with business
expectations; uniformity within the leeway of broad rules will be
promoted by uniformities of expectations, values and practices with-
in the commercial world. Llewellyn's ideas in this area received
their fullest exposition in The Common Law Tradition. In law
ambiguity (in the sense of two distinct meanings) is rarely deliber-
ately employed; vagueness (as contrasted with precision) is, how-
ever, recognized as having its uses. The draftsmen of the Code, while
occasionally deliberately employing vague general concepts, made
a deliberate attempt to cut down imprecision, ambiguity and incon-
sistencies of usage, where these were not considered to have positive
value. The main instrument employed for this purpose is the stipu-
lative definition. Section 1-201 contains no less than forty-six
general definitions applying throughout the Code. Great pains were
taken to ensure that the terms so defined were used consistently and
in accordance with their definitions.
Furthermore, all the other articles, except one (Article 6- Bulk
Transfers), contain substantial sections devoted to definitions, in
many cases incorporating by cross-references definitions set out in
other parts of the Code. These vary in precision, in detail and in
form. Some purport to give a comprehensive definition, others
merely clarify some particular point (e.g. 'Branch' includes a
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 337
separately incorporated foreign branch of a bank). 108 There is not
much that is particularly remarkable about the definitions, many
of which were framed after the substantive provisions had been
drafted. 109

LLEWELLYN'S WRITINGS ON COMMERCIAL LAW AND

CONTRACT AND THEIR IMPLICATIONS FOR THE CODE
In addition to the casebook on Sales and the Uniform Commercial
Code, Llewellyn published a substantial number of articles on con-
tract and commercial law.U 0 Some of these have been highly
regarded by experts in the field. No attempt will be made here to
do justice to them as contributions to the study of substantive law,
but a brief note on the relationship of the more important of them
to Llewellyn's other work is called for.
Outstanding is a series of four articles on sales which were pub-
lished in quick succession in the period 1937-9.111 These represent
Llewellyn at his best: they are models for the treatment of com-
mercial law in its economic and social context; they are excellent
case studies of judicial technique; and they are at the same time
valuable contributions to legal history. Perhaps in no other of his
published writings was Llewellyn so obviously in command of his
subject matter. These four articles develop in detail themes already
adumbrated in the casebook, but with significantly increased range
and depth.
From the juristic point of view other papers can be seen as
illustrations of Llewellyn's general ideas. A substantial part of 'On
the Rule of Law in our case Law of Contract' is devoted to the
problems of extracting doctrine from judicial decisions in a par-
ticular field of substantive law. 112 'Through Title to Contract and
a bit beyond', Llewellyn's most detailed discussion of 'title' in sales,
is a concrete example of the search for narrow categories. 118 'Meet
Negotiable Instruments', an admirable functional introduction to
the subject, involves the conscious application of some of Llewellyn's
educational ideas:
The approach and material here presented are an attempt to carry forward
the lines of teaching 'private' law suggested in (1941) 54 Harv. L. Rev. 775·
This holds of the effort to both give and simplify background; to make the
types of instrument visualizable; to focus on process; to reduce the number
of cases intensively discussed while integrating the background of these
338 KARL LLEWELLYN AND THE REALIST MOVEMENT

cases sufficiently to build a readily understandable whole; to build from the

simple but persisting situation toward to the more complex one; to play the
whole in terms of classroom practice in lawyer's doing: here the practical
handling of a well-built statute. With effort thereby to save classroom time,
even while indulging a wider perspective. The initial course of two semester-
hours is to be followed at students' option by another on 'Practice of Bank-
ing', also two units, in which banking material is conceived merely as an
exercise ground for training in simple counselling and simple advocacy. 116
These ideas are again apparent in 'Commercial Transactions', a
paper prepared as part of a refresher course for lawyers returning
after the war. This was republished under the title of 'The Modem
Approach to Counselling and Advocacy Especially in Commercial
Transactions' .115
Llewellyn taught contract for many years, but he published rela-
tively little on the subject. Here he was very much the disciple of
Corbin in most matters except style. 116 In his contract writings he
was particularly ebullient:
••• it is not safe to reason about business cases from cases in which an uncle
became interested in having his nephew see Europe, go to Yale, abstain
from nicotine, or christen his infant heir 'Alvardus Torrington, III.' And it
may even be urged that safe conclusions as to business cases of the more
ordinary variety cannot be derived from what courts or scholars rule about
the idiosyncratic desires of one A to see one B climb a fifty-foot greased
flag-pole or push a peanut across the Brooklyn Bridge. 117
Llewellyn was a consistent critic of the theory associated with
Langdell, Williston and the first Restatement of Contracts. This
has been restated by one critic as follows:
We learned that there are certain expressions of mutual assent to which the
law appends an obligation arising from the express or plainly implied
'promises' of the parties. The legal obligation is strictly limited to the
promises. These promises are discovered in the unvarying method by which
human beings contract with each other, namely, by means of 'offers'
embodying 'promises' directed by 'offerors' to particular 'offerees' who
'accept' by manifesting assent either by tendering a promise or an act. The
agreement thus made is enforcible at law or in equity if and only if the
promises involved 'detriment to the promisor.' Otherwise the agreement was
not supported by 'consideration' and was a bare nudum pactum. Case
variations were hung on the construct like ornaments on a Christmas tree,
glittering but essentially useless. us
Llewellyn had a number of fundamental objections to this
JURISPRUDENCE OF THE UNIFORM COMMERCIAL CODE 339
theory: first, it was over-generalized; second, it was a product of
pre-industrial face-to-face transactions and of laissez-faire ideology,
which fitted neither commercial need nor the way modern courts
were behaving in fact, partly out of sensitivity to commercial need;
and third, it encouraged an artificial and obnoxious kind of
formalism:
The rules of Offer and Acceptance have been worked over; they have been
written over; they have been shaped and rubbed smooth with pumice, they
wear the rich deep polish of a thousand class rooms; they have a grip on the
vision and indeed on the affections held by no other rules 'of law', real or
pseudo. For it was Offer and Acceptance which first led each of us out of
laydom into The Law. Puzzled, befogged, adrift in the strange words and
technique of cases, with only our sane feeling of what was decent for a
compass, we felt the warm sun suddenly, we knew that we were arriving,
we knew we too could 'think like a lawyer': That was when we learned to
down seasickness as A revoked when B was almost up the flag-pole. Within
the first October, we had achieved a technical glee in justifying judgment
then for A; and succulent memory lingers, of the way our dumber brethren
were pilloried as Laymen still. 11 8

It has been suggested, in an important article by Eugene F.

Mooney, that the Uniform Commercial Code has quietly but
effectively subverted the orthodox theory of contract. The Code,
it is argued, covers most commercial transactions and 'commercial
transactions account for an overwhelming number of contracts in
any industrial nation'. 120 The Code (especially Article 2) is based on
Llewellyn's ideas on contract, in particular on the substitution of
'agreement-in-fact' for 'promise' as the basis of contractual obliga-
tion. The effect has been that contract doctrine in the United States
is being made to adjust to the Code rather than vice versa, and
that this is reflected in the Second Restatement of Contract in
which the dichotomy between unilateral and bilateral contract has
been dropped, and changes have been made, which appear to accord
with Llewellyn's ideas, in respect of 'mutual assent, option contracts,
revocability, indefiniteness and acceptance'.121 'All in all', Mooney
concludes, 'Llewellyn nearly swept the board clean.' 122
If this thesis is valid, and that is best left for the experts to
dispute, it is probably fair to say that Llewellyn was just one among
a number of teachers of contract who were persistent critics of the
orthodox theory. 123 If anyone was the key figure, it was Corbin.
However, in so far as the Uniform Commercial Code is directly
340 KARL LLEWELLYN AND THE REALIST MOVEMENT

influencing the growth of contract doctrine in the United States

today, Llewellyn's writings on contract gain an added significance.

CONCLUSION

The foregoing analysis, although elementary, should be sufficient to

confirm the judgment that 'despite the numbers of persons involved
in the drafting of the Code, the extent to which it reflects Llewellyn's
philosophy of law and his sense of commercial wisdom and need is
startling.'m The most striking aspect is the extent to which ideas
associated with 'the Grand Style' were operative in the drafting
process: the search for commercially significant type-fact patterns;
articulation of purpose and policy; 'where the reason stops there
stops the rule' ;123 provision for the development of new com-
mercial usages and for adjustment of the law to changing conditions
and values; and 'faith in the court's ability to judge wisely whenever
it understands the base lines for judgment'. 126 For the jurist,
perhaps the most important single lesson to be learned from the
Uniform Commercial Code is that the Grand Style is not merely a
style of judging, but provides a model for law-makers and, indeed,
for lawyers of all kinds.
13
Miscellaneous Writings

The complete bibliography of Llewellyn's published works contains

two hundred and forty-six items. The number is almost doubled
when the unpublished manuscripts are added. In writing about
Llewellyn selection is inevitable, and a strong element of subjectivity
is necessary in such selection. This is particularly so when we are con-
fronted with Llewellyn's shorter works and his unfinished projects.
The writings discussed in this chapter concern the Sacco-Vanzetti
case, the legal profession and legal education, and the unfinished
project on Pueblo Indian law. If there is any connecting thread
running through these diverse topics it is that they illustrate three
phases of Llewellyn as a liberal intellectual. They have been chosen
for the additional light they may throw on a variety of themes
that have been explored in earlier chapters.

THE SACCO-VANZETTI CASE 1

The Sacco-V anzetti case has a special place in history and legend.
It is one of the best documented criminal cases in American legal
history; no other American trial has stimulated such a literary out-
pouring of novels, plays and poems. The basic facts can be briefly
summarized: on I5 August I920, in South Braintree, Massachusetts,
two men were murdered during the course of an armed robbery of
a shoe factory payroll. The attackers got away in a car. Twenty
days later Nicola Sacco and Bartolomeo Vanzetti, two Italian
working-class immigrants, were arrested; in May I 92 I, Vanzetti
was tried and convicted for offences committed in another hold-up;
in July, 192I, both men were convicted on indictment for the South
Braintree murders. There followed a lengthy legal campaign to
save their lives: between July I92I and October I924 eight
motions for a new trial were denied by Judge Thayer, the original
342 KARL LLEWELLYN AND THE REALIST MOVEMENT

trial judge whose fairness raised the main doubt about the case;
between October 1924 and April 1927 conviction was upheld on
appeal to the Supreme Court of Massachusetts, several further
motions for a new trial were denied, and on 9 April 1927 Judge
Thayer finally sentenced the accused to death. In response to public
pressure Governor Fuller referred the petition for executive clem-
ency to a special advisory committee under the chairmanship of the
President of Harvard, A. Lawrence Lowell. The Governor accepted
the Lowell committee's advice and refused clemency. Further des-
perate attempts to raise the matter again in the courts failed. Then,
on 23 August 1927, almost exactly seven years after the murders,
Sacco and V anzetti were executed by electrocution.
The case has sometimes been called the American Dreyfus case.
Internationally as well as nationally it provoked a long and furious
campaign of protest and counter-protest.2 Led initially by left-
wing political organizations, the majority of protesters saw the con-
viction of Sacco and V anzetti as a monstrous example of judicial
murder of innocent men, who had been persecuted because they
were radicals; public opinion in Massachusetts was hostile to the
accused and some reactionaries interpreted the protest movement
as a subversive attack on the institutions and structure of American
society. The polarization of views is brought out by Llewellyn:

Who are the two men whose names recur, whose lives and honor are the
immediate stake in all this story.
Niccola Sacco, an Italian, resident in Massachusetts from his eighteenth
year. A solid workman, who learned his trade outside of hours, a shoe-
worker, a 'good cobbler', and 'edger.' A simple-hearted devoted husband
and father. A lover of nature- who in prison found difficulty writing to his
friends unless blue sky heartened and cheered him through the bars. An
idealist, bent on improving the lot of working-men, so strong, so unafraid
in his convictions that on trial for his life, before a jury whom he knew to be
prejudiced against such views, he preached his beliefs, prepared to be a
martyr to his faith.
Niccola Sacco, (the same Niccola Sacco?), a foreigner discontented with
our institutions, yet content to abide among them. One who forsook all
decent views for Socialism, even for Anarchism. Living and earning here,
yet fleeing to Mexico in fear of being drafted to defend the country. The
user of a false name. A man who would lie lightly to his employer to cover
up a morning on leave which he had spent in talk and not on business. A
gun-toter. An agitator. A man too indifferent to American ways to seek
during twelve years offreedom to learn English decently, too stupid to learn
 MISCELLANEOUS WRITINGS 343
Englishdecentlyduringseven yean in jail.Anassociateofthat Vanzettiwhom
we know to have been convicted of an attempted holdup in Bridgewater.
Bartolomeo Vanzetti, a man who had fonaken his home in Italy and a
good living with a farmer-family whom he loved, because his conscience
would not let him be a party to exploiting men. A man who, though without
wife and children, astonished his neighbors by his steadiness and effort at his
work. A man who, ready to throw himself into the place of danger in
defense of his fellows, was chosen to go up to New York to discuss the
further defense of Salsedo, a radical held incommunicado by the Federal
authorities in their wild deportation drive of 1920; that Salsedo whose
'questioning' is suspected of having driven him to seek relief in suicide.
Vanzetti, a man whom person after person, of judgment, insight and sensi-
bility, learned to know after the time of his imprisonment; and whom each
of those who learned to know him came to honor, respect, admire, even
love. A man framed up before the present trial, on a charge made against
Sacco, too, until for Sacco an unshakable alibi was proved, in order to make
easy the conviction in the case in hand.
Bartolomeo V anzetti (the same Bartolomeo V anzetti?), a radical leader,
a speechmaker, an anarchistic agitator; closely concerned with that Salsedo,
who was dangerous enough to induce the Federal authorities to hold him
incommunicado till, seemingly, he confessed his guilt by suicide. A gun-
toter, Vanzetti, as well. A man convicted previously of another desperate
crime of violence. A man the more dangerous because of his brains and gift
ofleadership. A draft-dodger. A liar, who lied copiously and confessedly on
his arrest. A believer in violence. An associate, a sympathizer, a 'comrade' of
those radicals who threatened and even exercised outrageous violence in
efforts to terrify the authorities into giving him up without punishment.
Opinions differ, you may observe, about these two. Two things are cer-
tain: they were Italians and radicals; they were accused of murder. a

In itself the case was not especially remarkable: the crime was a
rather sordid example of crude amateurish gangsterism; the
innocence or guilt of Sacco and V anzetti is still a matter for argu-
ment; so too is the question of the fairness of their trial-certainly
it would not have been difficult to find clearer and more spectacular
examples of unfair judicial proceedings in the United States at that
time; although V anzetti, in particular, proved to be a remarkable
man, this did not become apparent until after public controversy
had gained its own momentum. One of the most notable facets of
the case was the unanimity of the decision-makers: 'The trial judge,
the trial jury, the Supreme Judicial court, and the Advisory Com-
mittee each and all, decided every vital issue against [the accused].'•
344 KARL LLEWELLYN AND THE REALIST MOVEMENT

Yet a significant sector of infonned opinion felt that the proceed-

ings were unfair.
The affair became important as a focus for protest and as a
symbol. Public outcry was slow in coming. It was not until four years
after the trial at Dedham in I92 I that the conscience of American
intellectuals was really aroused. There had been communist-in-
spired demonstrations in Europe in I92I, the American Civil
Liberties Union (with which Llewellyn was involved) had taken up
the case, as had a few individuals, but it was only later in I925, after
further agitation by left-wing organizations in the United States
and Europe, that public attention was caught. However, when they
did become engaged the intellectuals, according to Felix, made it
'the only significant intellectual occurrence in the United States
between the first World War and the Depression•.a Heywood Broun,
John Dewey, Felix Frankfurter, Walter Lippman, Samuel Eliot
Morison and Dorothy Parker in the United States, and Albert
Einstein, H. G. Wells, John Galsworthy, and Romain Rolland from
outside were among the many prominent people who spoke out for
Sacco and Vanzetti. After their execution their story inspired a
voluminous literature; it provides the central theme of Maxwell
Anderson's Winterset, Upton Sinclair's Boston, and John Dos
Passos' The Big Money (part of U.S.A.); it also features prominently
in works by authors as diverse as S. N. Behnnan, H. G. Wells,
James Thurber and James T. Farrell. By I948 a total of one hundred
and forty-four poems about Sacco and Vanzetti had been found, 8
and two scholarly works have been devoted to analysing the impact
of the affair on the American intelligentsia. 1
Llewellyn's association with the Sacco-Vanzetti case falls into two
parts. Prior to their execution he campaigned actively on their
behalf; according to his account his interest was first caught in the
spring of 1 926 by some disturbing passages in the opinion of the
Supreme Court of Massachusetts in rejecting the appeal of the
accused in Commonwealth v. Sacco and Vanzetti, 'of which I had
vaguely heard'. 8 Soon he was seeking to stir up support among
law teachers for a review of the case de novo. 9 Nothing came of it.
At this stage the campaign of protest became more virulent.
Llewellyn's principal contribution was to organize a petition by law
teachers to Governor Fuller, asking that a special commission of
enquiry be set up to look into the case and to advise on executive
clemency. The letter was moderate in tone and emphasised the
 MISCELLA NEOUS WRITINGS 345
need for public confidence to be retained in judicial institutions.10
On I June, in response to numerous demands of this sort, Governor
Fuller set up the Lowell Committee which, after holding hearings,
advised against clemency. Fuller, after further consultation, accepted
the advice and the execution was rescheduled for 23 August.
Llewellyn was among those who were thoroughly dissatisfied with
the report of the Lowell Committee, but his public criticism was
restrained. Three days before the execution he made an appeal over
the radio, urging listeners to petition Governor Fuller for a last
minute commutation.11 This was one of his most impressive pieces
of advocacy, eloquent yet restrained, appealing simultaneously to
emotion and to reason, and setting the case in broad perspective.
The address ended as follows:
With Sacco and Vanzetti the jury system of this country is on trial. Daily
in every city you are permitting lawyers to win - or lose - cases by playing
on the passions of the jury - murder cases, accident cases - every jury case.
Is the plaintiff a pretty woman? Play it up. Has the defendant a widowed
mother? Play it up. Prejudice of class and caste and race and nationality.
Jury men grin, and enjoy the lawyers' show. Lawyers grin, and pocket the
fees. rou sit and let it happen: the open invitation to the unfair trial. This is
the crime against justice men fear to have been committed in the case of
Sacco and Vanzetti. We must appeal to Fuller that they may be saved. But
we must awake to our responsibilities, awake, and stay awake, if a hundred
and a thousand of such cases are not to go on occurring without notice. We
must awake, or no change happens. We must stay awake because the process
oflegal and constitutional change is slow. Make no mistake: cases as dubious
as this one are occurring now, occurring everywhere, occurring daily. Make
no mistake: they will continue as long as citizens are content to sit in
comfort - ignorant, happy, quiet, ineffective. And once again make no
mistake: the first step toward change is commutation for these two. Their
lives have become a symbol for the demand that trials in court be fair.
Without your help the symbol may change form: and become their deaths. 11
This passage helps to explain the continuance of the Sacco-Vanzetti
campaign after their execution in 1927. The case was symbolic of
wider discontents. Like other causes celebres it was to some extent
an ambiguous symbol. Common to most interpretations was a feel-
ing, ranging among individuals from suspicion to certainty, that
the accused were convicted not because of what they did but because
of what they were. Beyond that there was scope for a variety of
views: to the working-class it could represent capitalist oppression;
to immigrants, the non-acceptance of the alien in American society;
346 KARL LLEWELLYN AND THE REALIST MOVEMENT

to liberal intellectuals, the persecution of radicals and reds; to

anarchists the corruption of the whole social system; to Llewellyn
it represented the failure of its judicial institutions to live up to
the ideals of the American polity. This became the main theme of
the second phase of his Sacco-V anzetti activities.
In 1928 he accepted an invitation to join the council of the
recently formed Sacco-Vanzetti National League. Their programme
included the publication of the official record of the case, the Lowell
Committee Report, and the letters of the accused; to work for
reforms indicated by the case, and to establish the innocence of
Sacco and V anzetti. 18 In the same year Llewellyn undertook on
behalf of the league to edit a collection of critical analyses of the
Lowell Committee Report. As the project progressed, the conception
changed, and the last plan was to make it a book about the case as
a whole, tentatively entitled Sacco and Vanzetti v. The Common-
wealth: An Indictment of the workings of our Judicial Institutions.
This was never completed, although as late as 1935, when the league
was dissolved, Llewellyn expressed the hope that it would one day
be published.u However, an advanced draft of approximately half
of the intended chapters has survived in typescript and this is suffici-
ent to give a fairly clear picture of Llewellyn's approach to the
case.15
The book was to take the form of an anthology of essays linked
together by a commentary by its editor. It was to be concerned
equally with the primary issue of the fairness of the trial in this
particular case and with the adequacy of judicial fact-finding pro-
cedures as illustrated by the record. The guilt or innocence of the
accused was to be treated as secondary to the question whether the
trial and post-conviction procedures had been fair; the whole was
to be treated as a case study of the working of American judicial
institutions.
Most of the completed manuscript relates to the original trial :
it includes a lengthy analysis of the evidence by Edmund Morgan,
leading to the conclusion that at the very least the guilt of the
accused was not established beyond reasonable doubt and that the
trial was a travesty of justice : 'Against a masterful prosecution was
opposed a hopelessly mismanaged defence before a stupid trial
judge.'18 This is set against an analysis of the proceedings by a
Canadian judge, Mr Justice Riddell, who concluded that: 'On our
Canadian principles, these two men had a fair trial as far as any one
 MISCELLANEOUS WRITINGS 347
can judge by the printed record.' Riddell's analysis had previously
been published;17 parts of Morgan's contribution were subsequently
incorporated in revised form, into Joughin and Morgan's The
Legacy of Sacco and Vanzetti. Also planned for inclusion were an
analysis of the procedure of the Lowell Committee, and a review of
Vanzetti's trial for robbery at Bridgwater, prior to the South Brain-
tree murders.
The underlying theme of the passages written by Llewellyn was
that the Sacco-Vanzetti case was important, not because it was
unique, but because it was typical.18 In particular, it revealed the
fact-finding machinery of the courts as being seriously defective.
A primary purpose of the book was to press the argument
that all the public can do about it is to kick the civil bar; that the problem
of improvement is a technical one, and that only technicians are equipped
to handle it. And finally, that until the civil bar gets kicked into a sense of its
duty as the public watchdog over criminal procedure, we get no reforms on
the legal side, as distinguished from the administrative side. 1 •
Unfortunately Llewellyn never got round to writing the final section
in which he could have been expected to go into detail about his
views on criminal process. Most of the sections he did write were
introductory, either concerned with particularities of the case or too
general to be of much value. There are some good passages, but
the introduction tends to be rather repetitive and Llewellyn seems
in places to be over-eager to appear judicious. However, some
aspects of the manuscript as it stands deserve comment.
First, it is worth noting that this study confutes the suggestion
that Llewellyn was not interested in courts of first instance and was
blind to the problems of judicial fact-finding. 20 As he often pointed
out, one reason for the tendency of academic lawyers to concentrate
on the work of appeal courts was that the relevant materials were
more readily available. 21 A subsidiary reason for Llewellyn's in-
terest in the Sacco-Vanzetti case was that it was exceptionally well
documented and so provided an unusual opportunity for a thorough
case study of judicial fact-finding. It must be conceded, however,
that Llewellyn seems to have been more at home with appellate
opinions than with trial records. This is hardly surprising, for the
fact-sceptic's path is not easy and Llewellyn was relatively inex-
perienced in this art.
Secondly, the manuscript contains one of Llewellyn's best dis-
348 KARL LLEWELLYN AND THE REALIST MOVEMENT

cussions of the rule of law. He was emphatic that the crucial ques-
tion for the public was not whether the accused were guilty, but
whether they had received a fair trial. 22 At the time, he professed
to have an open mind on the question of their guilt; at a later date
he is reported as saying that he believed that Vanzetti at least
was probably guilty. The crux of the matter was that a community
which allows prejudice or passion to enter into its judgments is
harming itself:
If, then, we are faithful to the form of government we have inherited, and to
the spirit which breathes through that form of government, we cannot allow
a radical, however much we despise his views, and though those views
attack our government itself, to be more quickly believed guilty of any
specific offence than would a man whose views on government we most
approved. If we are faithful to our form of government we must set out, with
gritted teeth, to judge the evidence for its own value, although the defendant
be the rankest revolutionary. That we owe, if rwt to him, then to ourselves. 18
Llewellyn considered at some length the difference between the
'specific act' and 'whole man' conceptions of criminal justice, and
concluded that the former, along with the ideal of a fair trial,
were 'of the essence of American institutions'.u The cause for con-
cern in the Sacco-V anzetti case was that practice had not
measured up to ideal. He made the point in terms which link it to
his juristic writings:
TMre are two American traditions. They war, each with the other. Each is American.
American politics reaches beyond the patter of Fourth of July speeches.
It covers what happens. American law is not exhausted with paper rules on
books. It extends to what goes on, to what ojjicials do about disputes, about
suspects, about criminals with influence, about trial and pardon - and the
third degree. The American Constitution is not limited to a venerable docu-
ment prepared a century and a half ago, with nineteen passages on paper
added since; the American Constitution is the actual framework of our
government as we are governed. And when Fourth of July patter does not
square with the influence of the machine, when the rules on the books do
not square with the third degree or the biassed judge, when the paper
Constitution says freedom of speech and assembly, but the governing officials
deport, or break up meetings - then we have two lines of phenomena and
not one. And anybody who likes either one of them can point to it as
American. I see no clarity to be gained by denying that bigotry, intolerance,
manipulation and even corruption of the police and of the judicial machinery
to protect men dear to those in power and to attack or frame their enemies -
or their victims - I see no clarity to be gained by denying that these are an
 MISCELLANEOUS WRITINGS 349
established American tradition. If years and repetition make dignity, they
are an 'honorable' one.
There is, thank God, another and opposite American tradition. 15
Llewellyn's approach to the Sacco-Vanzetti case is rather different
from that of the popular protest: whilst the majority were con-
vinced that the accused were innocent, he thought this was doubtful,
but irrelevant to the main issue; where others saw the case either in
terms of class (the Massachusetts establishment versus the alien
worker) or in terms of personalities (with Vanzetti as martyred hero,
and Judge Thayer as the principal villain), Llewellyn saw it largely
in institutional terms, the constructive question being: how can we
improve our institutions to limit the influence of human weakness
and passion? It has been suggested that the case stirred American
intellectuals because the apparent victimization of two Italian
immigrants became a symbol for the intellectuals' own sense of
alienation and rejection from American society. 26 In so far as this is
true of the intellectual contribution to the protest, it is not applicable
to Llewellyn. The case was important to him because he felt, as an
American, that his own institutions, for which he was ultimately
responsible, were failing to live up to his society's ideals.

THE LEGAL PROFESSION

Let this be written large, for senior partners in law factories to ponder on:
Law does not exist for corporation executives alone. It is not, even, for
stockholders alone, or those whose income tax, can, under proper coun-
selling, be cut. The courts, especially, are for all citizens who have, or believe
they have, rights of which their own efforts fail to induce fulfillment. 17
One of Llewellyn's main interests during the I930s was the legal
profession. An examination of the leading American bibliography
on judicial administration and the legal profession shows that with
one or two notable exceptions lawyers and their work had not been
a subject of systematic study prior to 1931. 28 In the post-Depression
years a widespread concern about the economic position of the
bar stimulated a series of bar surveys, which represent the first
attempts at systematic empirical research into the profession. During
these years there was also a good deal of self-analysis and criticism
centering around the organization of the profession, legal ethics,
and such matters as 'over-crowding' and 'unauthorized practice'.
Llewellyn played a leading part in this movement. In addition to
350 KARL LLEWELLYN AND THE REALIST MOVEMENT

writing a number of papers, 29 he was a member of an advisory

committee of the Association of American Law Schools in coopera-
tion with bench and bar which in 1933-5 sought funds for an
ambitious national sUivey of the bar. 80 Their attempts were un-
successful but eventually such a survey was undertaken just after
the second world war. 81 He was consulted in connection with bar
surveys in New York, Connecticut and New Jersey, 82 he was a
member of the Board of Directors of the New York Legal Aid
Society, and from 1937-9 Chairman of a special ABA committee on
Legal Service Bureaus. 88 It was at his prompting that a crippled
New York lawyer, Bill Weiss, started a legal clinic at which he gave
advice and help, often free, and never for more than $10. 8 ~ This
clinic, in tum, helped to stimulate interest in plans for a nationwide
chain of legal service bureaus. Later, during the 1940s, Llewellyn
was supervisor of the Columbia Legal Aid programme, thereby
bringing together his interests in legal services for the underprivi-
leged and legal education. 85 The most important of Llewellyn's
activities consisted in his campaign, carried on vigorously in public
speeches and in articles, for providing a wider range of legal services
for the members of the lower and lower-middle income groups. sa
Writing in 1947, Reginald Heber Smith, author of the classic work
Justice and the Poor, wrote in a letter: 'You and Lloyd Garrison
are the men who woke the Bar up to its duty and opportunity in
connection with persons of moderate means.' 87 It is rather difficult,
in fact, to isolate Llewellyn's contribution from that of a number
of people who were concerned with the same problems at that time,
notably Lloyd Garrison, Charles Clark, Isidor Lazarus, John Brad-
way and Reginald Heber Smith himself. All of these men have a
place in the related histories of the development of legal aid services
and of the systematic study of the legal profession.
Typically, Llewellyn's contribution consisted less of undertaking
systematic research as of producing a flow of stimulating sugges-
tions for research projects and for new types of organization to meet
the problems of the bar. Most of his ideas are to be found in two
important papers 'The Bar Specializes- With What Results?' and
'The Bar's Troubles and Poultices-and Cures?' 38 These papers
defy summary. They contain, in compressed form, ideas which have
subsequently formed the basis of whole books and research pro-
jects. Thus the suggestion that specialization and standardization
of certain kinds of legal work could lead to much cheaper and more
 MISCELLANEOUS WRITINGS 35I

efficient service became one of the central themes of Johnstone and

Hopson, Lawyers and Their Work (I967).S 9 In I933 Llewellyn
wrote, 'the old ethics of individualism in practice simply do not fit
metropolitan conditions.''0 Nearly thirty years later Jerome Carlin,
a pupil of Llewellyn's, took this idea as the basis for his notable
studies of the solo practitioner in Chicago and of lawyers' ethics in
New York, concluding inter alia that the most common offender
against canons of ethics is the individual practitioner, 'Abraham
Lincoln turned urban'. 41 Llewellyn was one of the first to agitate
for a national bar survey; and yet he foresaw the difficulties of attain-
ing objectivity and clear-sightedness in this area, difficulties which
were not entirely overcome by the famous ABA Survey of the Legal
Profession! 2 Anyone who has had occasion to think about the
problems of teaching legal ethics will recognize how much insight is
packed into the following passage:
The members of the law factory are, however, concerned for the ethics of
their lesser brethren, whose security in livelihood the obsolete ethic on non-
solicitation of business chokes offlike a tourniquet. And one of the remedies
they who mourn the wane of ancient ways have been prescribing is the
introduction of compulsory courses on legal ethics in the schools.
The naivete of the assumptions underlying this prescription should not
prevent perception of its lasting value. Social advance is here again a
product less of intention than of fortunate guess. A notion that lectures on
legal ethics conjure ethics into the listener is childish, in almost the exact
measure in which the listener is he whom it is wished to cure. None the less,
to spread instances before the future lawyer will inform him of some of the
problems he must face, and give him some idea of the risks he runs by any
unconventional solution. If he needs not ethical raising, but ethical prepara-
tion, it may do good. Yet to instructors trained in case-method teaching,
and reacting as experienced teachers to the difficulty of inculcating ethics
by a preachment, this seemed too little return for the outlay in time.
Especially, and understandably, they rebelled at the implicit assumption
that lectures would mean results- in the 'unfit'.
The first move - taken long before the American Bar Association had
officially pronounced - was the collection of a casebook on legal ethics.
This fitted the already traditional teaching technique. It provided concrete
cases, with authoritative rulings. But so far as ethical training is concerned,
the study of authoritative rulings tends rather to a training in unethics, being
a careful delineation of precisely how far the lawyer can go witlwut dis-
barment, with copious suggestion as to how to do most of the things lawyers
ought not to be doing.
An instructor of vision, alive to the reasons that make one rule rather
352 KARL LLEWELLYN AND THE REALIST MOVEMENT

than another useful for the ends law is to serve, can use the concrete
instances to get somewhere; but such an instructor is driven forthwith not to
authority, but to the facts of law practice, in order to inform his judgment.
Hence the almost simultaneous development these last years, all over the
country, of courses and collections of materials on The Legal Profession - to
see it as it is. u
There was one idea which Llewellyn particularly stressed. Unlike
Bentham, he did not consider that the interest of lawyers is in 'direct
and constant opposition to the interest of the community'.''
Rather he saw that at the root of complaints about overcrowding
was an unexploited identity of interest between lawyers and the
public. There was too little work to support the whole profession,
yet lawyers' services were in practice available to only a relatively
small proportion of the population. Llewellyn argued that lawyers'
services should be organized in such a way that they could be
provided at a cost which would be within the reach of members of
the middle and lower income groups. •G His most common pre-
scription was that bar associations should organize clearing houses
based on four points:
(1) to discover (as the legal departments of business houses do) what the
recurring transactions are which can be largely routinized; (2) to make both
the routine and the limits of its value available to every lawyer, and especi-
ally to the lawyers on the list; (3) to fix maximum fees for services which on
this basis can be performed for such fees; and (4), last and not least im-
portant to bring home to the public what service it needs, and where that
service can be had, at a reasonable figure. The legal aid societies would not
be backward in cooperating. And much of the necessary work they have
already done. u
Although Llewellyn favoured one particular institution, the legal
service bureau, his writings were based on a deeper analysis of the
problems of the bar and hint at many ideas which have subsequently
become familiar-collective professional responsibility, preventive
practice ('legal hygiene' was Llewellyn's phrase), stratification with-
in the profession, the need to think in terms of standardization and
economies of scale and the need to find a collective substitute for
advertising by individuals. These are ideas which anticipate the
growth of lawyer reference programmes and neighbourhood law
offices and even of a compensation fund for victims of lawyers' in-
competence and dishonesty, such as was introduced in England by
the Law Society in 1941.'7
 MISCELLANEOUS WRITINGS 353
Llewellyn's writings of this period are focused on certain problems
of the time. They are full of ideas which are suggestive, but most of
these he did not attempt to develop systematically. Even by the late
196os the compressed insights of some of his papers of the 1930s had
not all been fully exploited by specialists in the sociology of the
legal profession, although the subject had by that time grown into
a recognized area of specialization.48 At a later phase Llewellyn did
start to develop at a theoretical level his ideas on one phase of the
subject- his theory of the crafts of law, which has already been
considered. 49

LLEWELLYN AND LEGAL EDUCATION

In recent years there has been growing realization of the relevance
of the sociology of the legal profession to the development of legal
education. Llewellyn sensed this, without fully articulating it. 30 As
was pointed out by Max Weber, who lawyers are, what they do,
what is their function in society, how they conceive their roles, and
their approach and perspectives are conditioned largely by their
training and by the nature of the legal tradition to which they were
first exposed. n Conversely any formal system of legal training, in
so far as it is purposive, is necessarily based on assumptions, whether
implicit, explicit, or only half-articulated, about the nature and
functions of the legal profession.
It might be thought that the avowed vocationalism of American
law schools would have simplified for them the problem of formu-
lating their educational objectives. While most law schools and law
teachers assumed that their main aim was to produce 'good lawyers',
what constitutes a 'good lawyer' in this context was rarely the
subject of serious analysis. For instance, the image of the legal
practitioner underlying Langdell's approach to legal education
could easily be shown to be over-simple and unrealistic even in his
own day. But it was extraordinarily influential. Similarly the
counter-images of Langdell's opponents such as Holmes, Frank and
Lasswell and McDougal/ 2 while they provided a useful corrective
were hardly less crude.
Some of the reasons for this are not hard to find. During
Llewellyn's lifetime an extensive literature on legal education
accumulated. 33 Its quality did not match its bulk. Although over
the years there was some improvement, by and large 'legal educa-
354 KARL LLEWELLYN AND THE REALIST MOVEMENT

tion' was not thought to deserve the same criteria of rigour, detach-
ment and accuracy that are applied to 'respectable' scholarship.
Little serious research was done, and there was a lack of an adequate
general theory and a refined terminology; the complexity of the
subject tended to be under-estimated and such intellectual tools as
had been developed by serious students of education were largely
ignored by legal educators. In short, the literature of legal education
was more the work of worried amateurs than of professional
specialists.
Llewellyn was a teacher for over forty years, he cared deeply
about education, and there were few aspects of his work which
were unaffected by pedagogical concerns. Yet he belonged to the
amateur tradition of legal education : while he made some valuable
contributions as a pioneer, witness the Casebook on Sales, the
Bramble Bush, the course on Legal Argument, and his teaching of
jurisprudence, his writings about legal education are uneven and
disorganized; and, for all his flair, his classroom performance lacked
the consistency of the true professional.
There are, however, two specific contributions made by Llewellyn
in the direction of a more systematic approach to legal education.
In the early 1940s he was appointed chairman of an AALS com-
mittee on curriculum. This committee was one of a number set up
to consider the immediate post-war problems of American law
schools. The committee appears to have been dominated by two of
its members, Llewellyn and Professor David Cavers of the Harvard
Law School. u Both of them were interested in the idea of system-
atic training in legal skills, and this was made the basis of the well-
known report of the committee which was published in I 944· The
nature and authorship of the report is indicated by the fact that in
1945 the text was republished as an article under Llewellyn's name
under the title 'The Place of Skills in Legal Education'. &&
The report took the case method of instruction as a starting-
point. It acknowledged that Langdell had been responsible for a
major advance by switching the emphasis in legal education from
acquisition of knowledge to training in skill.s6 However, for a
number of reasons, notably the increased complexity of law, the
case method was no longer an efficient way of developing the skills
that it had induced in Langdell's time. Moreover, there were other
skills-interpretation of statutes, appellate advocacy, simple draft-
ing, counselling, and certain not very clearly defined 'public law
 MISCELLANEOUS WRITINGS 355
skills'-which could be taught more directly and efficiently by other
means. The report was emphatic that what they were recommending,
far from being mere training in the tricks of the trade, would be
more compatible with the accepted ideals of university education
than the mere acquisition of knowledge (by inefficient means) to
which much legal education had descended. At the time it was
published the report was notable for three ideas: first, that law
school methods, however stimulating for the better students, were
failing to produce minimum technical competence in all students.
Second, that systematic and direct teaching of certain professional
skills is both possible and desirable; and third, that the teaching of
selected skills is not necessarily illiberal.
In the light of subsequent developments, on certain key points the
report seems rather vague-for instance, there was no comprehen-
sive analysis of lawyers' operations; and the exact nature of some of
the particular skills considered was not probed and their 'teach-
ability' was mainly a matter of optimistic assertion. However, it direc-
ted attention to a neglected subject and it struck another blow against
the strongly entrenched assumption that the curriculum could only
be classified according to fields of law.
It is difficult to assess the influence of the report, because it was
only one of a number of contributions to the rethinking of legal
education that were made about that time. However, it is clear
that since I944 there has been considerable interest in 'skills teach-
ing', and an extensive literature on the subject has developed. n
However, there is as yet no reliable basis for assessing the effective-
ness and economy of most skills' courses. Some specific developments
concerning teaching of skills subsequent to I944 deserve brief men-
tion. First, Llewellyn was personally involved in trying to further
the teaching of appellate advocacy and drafting. 58 In collaboration
with David Cavers and Ralph Fuchs he formulated plans for a pro-
ject on legal drafting.19 Although this particular project proved
abortive, all three of the orginal protagonists were subsequently
involved in promoting this kind of training. More significant is
the fact that two important contributions to the development in
training in legal skills were subsequently made by former pupils of
Llewellyn. At the University of Cincinatti Professor Irvin C.
Rutter in conjunction with a series of particular courses developed
the best theoretical analysis of lawyers' operations that has yet
appeared in print.80 Rutter received a considerable amount of en-
356 KARL LLEWELLYN AND THE REALIST MOVEMENT

couragement from Llewellyn, who stage-managed and chaired a

round table discussion of Rutter's work at the AALS convention in
xg6o. Another disciple of Llewellyn, Charles D. Kelso, was respon-
sible for the first major application of programmed learning to the
study of law to be published. It is not a coincidence that this was
devoted to 'case skills', and that Llewellyn's ideas on case law are
explicitly made the basis of Kelso's programme. 61 What is signifi-
cant about the work of Rutter and Kelso is the systematic nature of
their approach, which marks the introduction of some educational
professionalism into law teaching.

PUEBLO INDIAN LAW-GOVERNMENT62

The Pueblos of New Mexico consist of a number of separate com-
munities, divided into three distinct language groups: Tanoan,
Keresan and Zunian. In xg6x there were nineteen surviving Pueblos,
ranging in size from under a hundred inhabitants to over four
thousand. Few, if any, surviving tribal societies can have such an
extensive and rich record of their history. Few other cultures have
proved so resistant to the assaults and enticements of western
civilization. Since the sixteenth century the Pueblos have been sub-
ject to almost continuous Christian influence, but Christianity did
not drive out the tribal religion and many facets of tribal life are
essentially the same as they were before the time of Columbus. 68
To archaeologists and anthropologists what was fascinating was
their history and culture; to Llewellyn the absorbing problem was
how to preserve what he called the 'tribal core' of these 'communist'
societies within the framework of American society.
The Pueblos, despite their reticence, are one of the most studied
of Indian groups. Their religiosity, the power of their priests, and
the cohesiveness of their culture led some early investigators to
ignore or to underemphasise the significance of the secular leaders
as agents of social control. In particular, Ruth Benedict in her well-
known work Patterns of Culture64 painted an idealized picture of
the Pueblo of Zuni in which the secular authority was dismissed in
a single paragraph as being of little importance and largely un-
necessary. Zuni would appear from her account to be little short
of an earthly paradise in which there was hardly any job for law.
However, as Hoebel was to conclude, 'it appears to be an absence of
investigation (in the case of organic theorists [like Benedict] a selec-
 MISCELLANEOUS WRITINGS 357
tive bias) rather than an absence of formal control that has left the
legal undiscovered'. 85
In 1945 Llewellyn and Hoebel obtained a grant from the
Columbia University Social Science Research Council to study the
law-government of some of the eastern, Keresan-speaking Pueblos.
In some ways the project was a natural successor to The Cheyenne
Way: the reputed communalism of the Pueblos promised a sharp
contrast to the more individualistic Comanches and Cheyennes,
while the suggestion that they had no real 'law' provoked the same
scepticism that had underlain Hoebel's first approach to the Indians
of the Plains. Because the Pueblos consisted of a number of discrete
communities they offered unusual opportunities for comparative
study. However-, it was as much chance as design on their part that
led Llewellyn and Hoebel to embark on the project.
Shortly after the publication of The Cheyenne Way, while
Llewellyn was visiting Boulder, Colorado, he casually expressed an
interest in seeing some of the Indian communities in New Mexico.
News of this interest reached William A. Brophy, a lawyer who
was Special Attorney for the United Pueblos Agency at Albuquer-
que, New Mexico, and who happened also to be an admirer
of The Bramble Bush. He contacted Llewellyn.66 Twenty years
later Brophy described their first meeting as follows :
He put me at ease and we talked on a porch. And we went out to see some
Pueblos. I remember well that I had just had some rough case out at Zia
and I asked Karl to go there so he could get the basic material and give me
advice. But once having the case he launched into the System. We sat on a
rock in the shade with (as I remember) Juanito Medina, Lorenzo Medina
and (I think) old man Andres. 'What do you do when you have heard
everything?' 'We decide.' 'What do you do then?' 'We ask the man: Are
you satisfied?' 'Suppose he says he is not satisfied with your decision what
do you do?' 'We dig deeper!' Then Karl jumped and shook and got excited
like a Shaker, and continued his probing. 87
Writing of Llewellyn's later achievement, Brophy continued:
He gave those Indians confidence that they had a system of justice that was
not to be laughed at as some of the B.I.A. [Bureau oflndian Affairs] people
did. He gave them dignity by his very interest. For no man of his eminence
would be interested in learning about foolish things. And this recognition
that the Pueblo Systems were real systems of justice radiated out among all
the Pueblos. He gave me an understanding which I no more than sensed
before or perhaps never even had the sense to recognize before. And he
made me more effective. 88
358 KARL LLEWELLYN AND THE REALIST MOVEMENT

In introducing Llewellyn to Zia, Brophy had not been entirely

disinterested. The Pueblos were largely self-governing, with civil
and criminal jurisdiction over all matters occurring on their land
except a few serious offences.8 e Their leaders were at this time
under pressure on two fronts: on the one hand, members of the
younger generation were restive and the prospect of the return of
Pueblo tribesmen who had served in the American forces posed a
threat to authority and tradition; on the other hand, their auton-
omy was in danger of being seriously eroded by the federal and
state courts. On several occasions Pueblo officials had been gaoled
for applying harsh punishments in execution of Pueblo law,
and their confidence was being undermined through uncer-
tainty about their legal position vis-a-vis the United States Govern-
ment. The New Mexico courts, too, had in respect of divorce and
habeas corpus begun to exercise jurisdiction which the Pueblo
leaders considered clashed with their traditional prerogatives. 70
Brophy, who admired many facets of the Pueblo system, felt that
their autonomy could be more effectively defended if Pueblo law
and procedure were recorded. It would then be better understood
both by federal and state courts, as wen as by individual tribesmen.
He felt, too, that Pueblo officials might benefit from advice on
handling some of their administrative and legal problems. He saw
in Llewellyn's visit a possible opportunity, but he could hardly have
anticipated the enthusiasm with which Llewellyn reacted. It was
virtually a case of love at first sight. Thereafter Llewellyn felt an
emotional and mystical bond with the Pueblos which coloured his
relationship with them, especially with the older generation.
Brophy secured the agreement of leaders of several Pueblos that
an invitation should be sent to Llewellyn and Hoebel to come to
investigate their legal processes and to act as unofficial consultants.
He also secured official government support for the project. 71
Thus, from the start, the relationship with the Pueblos involved a
combination of research and practical assistance. In contrast with
the Cheyenne project, Llewellyn did a substantial amount of field
work on this occasion. He visited New Mexico for substantial
periods during five consecutive summers from 1945--9 and again in
1951. However, much of the actual collection of data was done by
Hoebel, Mentschikoff and a variety of assistants. 72 For not only
did Llewellyn have few pretensions to be an efficient fact-gatherer,
but he also became increasingly involved as a participant in Pueblo
 MISCELLANEOUS WRITINGS 359
affairs. Besides acting as an unofficial adviser on a variety of matters,
he drafted law and order codes for the Pueblos of Santa Anna,
Santa Domingo and Zia and he assisted their officials in a number
of specific cases and helped to formulate general policies on such
matters as membership of the Pueblo, divorce, and religious tolera-
tion.78 He and Hoebel helped the Pueblo of Zia to obtain a facsimile
of an important ceremonial snake pot that had been removed by an
anthropologist many years before and presented to the United
States National Museum in Washington. In all these activities
Llewellyn exhibited extraordinary sensitivity to and respect for the
Pueblo point of view, and in the process of working for them gained
a great deal of insight into their problems and the ways they
handled them.
Unfortunately, he did not manage to capitalize on this experi-
ence. His practical assistance to the Pueblos seems to have been of
real value, but the research project yielded little in the way of
concrete results. This is regrettable, for it had considerable potential.
It is to be hoped that something may yet be salvaged from the
extensive field notes that survive; 7' however, Llewellyn's legacy
contains only three matters that are likely to be of any general
significance: the draft codes of law and order; a proposal for a
comparative study of Pueblo and Soviet law; and the concept of
'the parental' model of law-government. Each of these deserves a
brief comment.

The Codes
The principal way in which Llewellyn sought to help the Pueblos
was by drafting a series of codes of law and order. 111 These had
three main aims. First, to increase the chances of non-interference
by the federal and state courts by establishing that there were clear
rules of law and order and that the procedures for decision satisfied
national standards of due process. Secondly, to ensure that the basic
rules of the Pueblo were known and understood and accepted by
those to whom they applied. And thirdly, to provide guidance to
Pueblo officials in the exercise of their authority.
Extracts from one of the codes and related documents are re-
produced in Appendix F. The codes were concerned with the
position of officials, with procedure, and with the extent and limita-
tions of authority within the Pueblo. They were deliberately simple
and short and did not purport to cover all of substantive law.
360 KARL LLEWELLYN AND THE REALIST MOVEMENT

Rather, they were envisaged as a sort of social contract, a com-

bination of a rationale for exercise of authority within the Pueblo
concerned and a statement of the basic rules relating thereto.
They represent a straight forward application of some of Llewellyn's
favourite ideas : articulation of purpose alongside prescription;
open-ended drafting with extensive use made of standards of
reasonableness, good faith and fairness; a bill of duties accompany-
ing a bill of rights; and a simple style which aimed above all at
communicating the substance and the rationale of their law to the
people who were subject to it. Llewellyn saw very clearly that the
way to preserve 'the tribal core', as he called it, was to make member-
ship of the Pueblo ultimately dependent upon the acceptance of a
clearly articulated set of principles. Dissenters were free to leave,
but if they stayed they had to accept the conditions of membership.
The ultimate sanction was expulsion. 76
The codes are so simple that at first sight they may not seem to be
remarkable. However, informed opinion suggests that they success-
fully harmonize Pueblo rules with American concepts of due pro-
cess and individual rights, and that they catch the spirit as well as
the substance of the traditional mode of administering justice, whilst
mitigating some of its harshness. 77 They compare favourably with
other attempts to record or restate the laws of pre-literate societies,
especially in not isolating substantive rules of law from their pro-
cedural context. 78 Of the preamble to one of the codes, D'Arcy
McNickle, an American Indian writer, has said: 'It is a simple
statement, aimed at the guidance of a few score men, women and
children. Yet one wonders when at this moment a more profound
document on human government might be written.' 79

Pueblo-Soviet Parallels
The original plan for their research envisaged a study not very
different from The Cheyenne Way. However, it was not long before
the project underwent a decided shift in emphasis. Whereas in The
Cheyenne Way they had been particularly interested in juristic
method, among the Pueblos it was the communalistic regime and
ideology which attracted their attention. Here Llewellyn was
caught off-balance by the difficulty of reconciling his bourgeois lib-
eral views with his admiration for a regime that seemed at once
totalitarian, communalistic and theocratic:
 MISCELLANEOUS WRITINGS 36I

The small but almost 'complete' Pueblo governments and systems of law-
and-administration force inquiry into a large number of bedrock problems
in political philosophy. For example, the relation of religious freedom to a
Church-State Unity and the problems of toleration, tolerance, and repres-
sion of dissenting views in terms of the kinds of dissent: passive, active,
aggressive, obstreperous. Or, the problem of combining a high degree of
collective control of economic life with a very material degree of individual
or family independence and even economic initiative amid changing
economic conditions. Or the problem of maintaining or adjusting an in-
grained ideology without disruption of its values, with a younger generation
affected by a wider and utterly diverse ideology; and of producing peaceful
relations with an utterly diverse neighboring, and to some extent, predatory,
culture. Or, the manner and degree in which officially unrecognized changes
creep in under maintenance of the older ideology and forms. 80
At an early stage Llewellyn began to see striking similarities between
Pueblo and Soviet society, and in 1946-7 he prepared detailed
proposals for a project on Soviet law which would run in parallel
to their research in New Mexico. Unfortunately, for reasons un-
connected with its merits, this project never materialized. It is worth
quoting at length Llewellyn's tentative formulation of projected
lines of comparison, both because of their intrinsic interest and
because they throw some light on his views on the vexed question
of the validity of comparisons between primitive and advanced
systems of law government: 81
Being aware that the proposed comparison of one of the hugest States in
history with a 'State' of 25o-2,ooo persons has a surface appearance of the
silly, I append a series of significant comparisons and possible cross-illumina-
tions which seem to me evident as soon as noted. I proceed on my funda-
mental hypothesis that the basic problems of government and the law-jobs,
of the development of the human being in relation to his culture, and of the
integration of a culture, are essentially identical regardless of the size of the
group concerned and can attain sufficient complexity in a small group to
shed significant light on even the more intricate problems of a large one. In
the Pueblo this degree of complexity has been attained. Compare, for
instance:
(1) The paternalistic, patient, but unyieldingly absolute approach to
criminal 'justice', with the accompanying phenomenon of what may be
sloganized as 'joyous confession'.
What comes back from Nuremberg in regard to the views of the Soviet
participants on just methods of trial might almost have been dictated by a
Pueblo leader. When applied to a member of the We-group, you have the
otherwise baffiing phenomenon of personal internal release of any ordinary
362 KARL LLEWELLYN AND THE REALIST MOVEMENT

recalcitrant as, under the relentless psychological pressure, he finally re-

identifies himself with his own, sees and confesses what is in psychological
essence sin as well as guilt, and joins in his own condemnation. Neither a
Soviet court nor a Pueblo court is happy when a culprit out of the recognized
We-group cannot be brought to approve his penalty.
This must be studied in more than a single culture to make clear that it
is a process and method of great human significance, not a possibility merely
in a primitive or face-to-face grouping. Note the bearings on discipline in the
family, and those on discipline in the medieval Church.
(2) The problem of the unyielding official ideology, in regard to any of
the liberties: its bearing on the political structure (tight central control,
passive general assent) ; on the selection of leaders and policies (co-option of
young Tories, elimination of young radicals, schism among rival ortho-
doxies with policy-differences operating only under cover - but operating);
on the training of the young; on - seemingly among the Soviets also - the
development of three strikingly diverse types of human being: the rounded
leader (who among the Pueblos has a wisdom and shrewdness utterly
amazing); the 'good soldier' type, loyal, effective and unthinking, who is
the backbone of administration; the great ruck, quiescent, undeveloped,
vaguely baffled.
Prior descriptions of the Pueblos have concentrated on the last; but both
of the other types are strikingly present. Current reports suggest something
closely similar among the Soviets.
(3) Closely related, when one adds centralized communal economic
management plus communal 'ownership' of all basic utilities and resources,
is the drive of ambition toward power rather than wealth, and the question
of what lines of outlet are found for family-feeling.
On the economic side the Pueblos are in the main holders-back rather
than five-year Planners, land-minded rather than industry-minded. For that
very reason, parallels in process and result offer deeper light.
(4) A rationalization machinery whereby basic economic or political
change is worked into the orthodoxy is at constant work in both systems.
(5) A significant further parallel, though I do not think we can reach it in
the Soviet system, lies in the processes of formation of attitude and opinion
in a 'public' which has no effective means of inter-communication. The
slowness of gossip, rumor or news to spread, within a Pueblo, almost passes
belief. And for myself, I incline to believe that a solid belief in and fear of
witchcraft produces social and personal effects closely resembling the
results of fear of informers and secret police.
(6) The problem of adjusting to an outside world based on different,
competing, and 'dangerous' ideology and institutions shows fascinating
parallels. Pueblo 'secrecy' has been interpreted as defensive and religious.
What of Soviet 'secrecy?' Both cultures indoctrinate at high power and
seek to avoid contamination. Each seeks to borrow and absorb differentially.
 MISCELLANEOUS WRITINGS 363
Each takes productive technology but seeks to rule out the liberty-ideology
which gave rise to the technology, the distribution system which might
accompany the technology, the consumption-ideas and ideals which are the
counterpart of the production-ways in the neighboring system. That the
Pueblos are tiny and subject, the Soviets mighty and huge, again only re-
inforces the value of process-study.
(7) The processes offederation are at work in both cultures. Though here
I think political conditions to be so different that there is little cross-light
to be had, only light on the general federation problem from its two extreme
ends. I would point out, however, that this aspect of the Soviet system has
peculiar interest. u

These ideas were put forward merely as possible starting-points

for enquiry. Llewellyn was well aware that some of his suggested
parallels might prove to be misconceived and that complexity itself
was a factor to be taken into account. Thus, if it transpired that
rumour in fact travels fast in the Soviet Union or that the selection
of leaders is a much more complicated matter than is suggested by
Llewellyn' s second paragraph, this would not necessarily mean that
a comparison between aspects of Soviet and Pueblo cultures might
not be illuminating. The value of comparative study is thought to
lie in the heightening of awareness that can be occasioned by
identifying similarities and differences between two phenomena
that have sufficient characteristics in common to afford a basis for
comparison. 8 a Llewellyn's hope was that Americans, in particular,
might find it easier to understand Soviet culture by approaching it
through the study of Pueblo societies which were at once American,
simple, and relatively free from the strongly emotive ideological
associations of communism.8 ' The basis for comparison, in his view,
was to be found in the idea that the social organization of both
groups approximated to a single theoretical model of law-govern-
ment, which he characterized as 'parental'. This theoretical model
is examined in the next section.

The 'Parental'
Commentators have remarked on the 'paternalistic' or 'protective-
educative•sa aspects of Soviet law as evidenced by such matters as
their reputed concern for 'the whole man' rather than the particular
act, their emphasis on confession and reintegration into society, and
the use of judicial proceedings to dramatize and propagate civic
virtues. Llewellyn saw such matters as belonging to a wider con-
364 KARL LLEWELLYN AND THE REALIST MOVEMENT

figuration of factors which tended to coincide and which he

characterized as 'parental'. His 'parental' model (ideal type) applied
both to total systems of law-government and to dispute-settlement
mechanisms. In respect of the latter, the 'parental' was contrasted
with 'the adversary'; the 'parental pole of law-government' did not
have a single opposite pole, as he explained in his most complete
discussion of the concept:
The 'parental' pole for charting a profile of the law-and-government
institutions of a society or other group would represent a centering of the
absolute at one end of a series of axes: (1) on the axis of Power, it would
represent absolute power in a single hand, both inwardly toward the group-
members and outwardly in foreign relations; I suppose the other pole would
be pure anarchy in either form: power in none, or equal power in each.
(2) on the axis of Personnel of law-and-government, the pole is the single
person, with one-man's effective choosing, directing, supervising, disciplin-
ing and removing a very high latitude situation; any constitutional regime
with wide suffrage and a good chance for rise by merit will serve as partial
contrast. (3) on the axis of Penal Purpose, the parental pole represents con-
fession, repentance, purification and reintegration of the offender, precisely
as in the perfectly run family; any other goal is in contrast, with protective
extirpation close-up to the pure-parental. (4) along the axis of Procedure
(in cases of dispute or grievance or offense), at the pole the judge-king knows
the facts before 'trial', has all the initiative, and runs essentially a solemn
ceremony, on the criminal side, of confession and cure, on the civil side, of
confession, atonement and complete reconciliation. Any admixture of
adversary-type procedure, litigants' initiative, etc., moves far away along
this axis. (5) along what might perhaps be better seen as seven different axes,
but which I shall call Planning -organization and guidance of the polity-
the parental pole is where Papa knows best and in simple consequence says
what shall be done and how. One starts moving away from the pole when
papa is limited to some manner or time, or by his own prior official action
(as in Daniel's case.) (6) on the axis of Participation, the pole is unquestion-
ing acceptance with rejoicing; I suppose the utter other pole would be out
far beyond any 'democratic' regime: a unanimous spontaneous revolution.
I feel rather clear the need for dealing with some such other axis as the
Knowledge-Regime, with the parental pole representing simple omni-
science and considerable emphasis, as one moves away from that pole on the
openness of channels of communication and of opportunities for inquiry. 81
This passage was probably written shortly before Llewellyn's death;
it may be one of a number of manuscript fragments that he drafted
in conjunction with an article on juvenile courts on which he was
working when he died. 87 Although he never fully developed his
 MISCELLANEOUS WRITINGS 365
theoretical model, he used the term 'parental' for a considerable
time. 88 Indeed, he claimed to have started to become aware of a
difference between 'parental' and less authoritarian modes of
organization during his work in boys' camps when he was a young
man,89 but it was not until his early encounters with the Pueblos,
twenty years later, that he became aware of a configuration of
factors which he felt to be significant. Subsequently he came to see
similar patterns in the prototype of the American nuclear family,
the medieval inquisition, certain phases of Church government, and
in the Soviet system.90 But he did not carry through his analysis in
respect of law-government systems.
In Law in Our Society Llewellyn elaborated his analysis of
'parental' in connection with dispute-settlement mechanisms. 91 In
this context the contrast between the 'parental' and 'the adversary'
will be seen to be very close to the familiar contrast between 'in-
quisitorial' and 'adversary' models of judicial proceedings. Here
Llewellyn may be deemed to have made an original contribution by
widening the focus of attention to include all types of dispute-
settlement mechanism, while suggesting that there may be some con-
nection between inquisitorial types of judicial proceeding and
parental modes of government on a larger scale. However, the value
of the 'parental' concept is difficult to assess, for Lle~ellyn's analysis
was rudimentary and he did not himself have occasion to use it in a
sustained piece of analysis. It would seem that, not uncharacter-
istically, he produced the nucleus of an important idea, but left it to
others to refine and develop it. 92
14
The Significance of Llewellyn:
an Assessment

When Llewellyn first embarked on the study of law in 1915, the

American law school world was at the beginning of a new phase.
The broad pattern of its development for the next fifty years had
already been anticipated in several important respects: Langdell's
educational reforms had by then captured the leading law schools:
Holmes and Pound had already charted the path for a more socially
oriented approach to law; the revolt against formalism was well
under way; and organizations such as the NCO had already begun
their efforts to unify and modernize some branches of the private
law of the various states; papers by Corbin, Hohfeld and Bingham
had recently appeared, foreshadowing the growth of the Realist
Movement and a rich, but confused period of juristic activity. The
last years of Llewellyn's life and the period immediately after his
death saw a series of events which suggested that the law school
world was again entering a new era: for example, the implications
of the computer were being explored; there was a marked increase
of political and social consciousness in the law schools; there were
signs of a corresponding decline in enthusiasm for the life of the law,
and, perhaps, for the jealous mistress herself. The idea of love of the
law, so eloquently expressed in The Bramble Bush and Holmes'
speeches, seemed quaint to many law students of the sixties. There
had also been significant academic developments: in particular the
revitalization of analytical jurisprudence, and new interests in system
building and mathematical models and jurimetrics were sympto-
matic of a trend in some quarters away from the revolt against
formalism. In the social sciences generally there was a greater
maturity and self-confidence which was reflected in such fields as
THE SIGNIFICANCE OF LLEWELLYN: AN ASSESSMENT 367
criminology and the study of the legal profession. This in turn
generated a new optimism about attempts to develop law as a social
science.
In this perspective, it is worth asking: what is the significance,
historical and contemporary, of Llewellyn's work? In certain par-
ticular respects Llewellyn's contributions are now mainly of his-
torical interest. His casebook on sales was the first, and most notable,
of a series of similar works that introduced important modifications
into the Langdellian prototype, without destroying it. Since I930
American legal literature for students has slowly increased in variety
but has continued to be dominated by this modified prototype.
Secondly, in the 1930s Llewellyn played a modest but nonetheless
significant role in stimulating the development of the systematic
study of the legal profession and the extension of legal services for
the underprivileged. Since the second world war both subjects have
made considerable progress in the United States, so that today the
sociology of the legal profession is one of the more developed areas
of the sociology of law and 'Poverty Law' is one of the more fashion-
able 'new' subjects. Thirdly, the 'case method' of The Cheyenne
Way has been assimilated into the conventional armoury of anthro-
pological field techniques and has been used in most subsequent
anthropological studies of tribal law. The potential of the approach
of The Cheyenne Way has not yet been realized in lawyers' treat-
ments of this kind of subject matter. Fourthly, Llewellyn shares with
others, Jerome Frank in particular, credit for fostering a greater
consciousness of the possibilities of systematic training in 'legal
skills'. Although there has been much talk about this, and some
individuals have tried to develop the subject, realization of its
promise probably must await the arrival of a greater degree of
educational professionalism in universities. Fifthly, Llewellyn has
a place in history as the principal architect of the Uniform Com-
mercial Code. By virtue of its widespread adoption the Code is im-
portant in itself and has attracted considerable attention. It was
both a product of, and itself further stimulated, re-examination of a
wide range of long-accepted common law doctrines in commercial
law and contract.
Finally, Llewellyn was a member of the realist movement, its
most sophisticated jurist, and a central figure in its most important
controversy. As its leading interpreter, however, he may inadvert-
368 KARL LLEWELLYN AND THE REALIST MOVEMENT

ently have obscured as much as he illuminated the nature of the

movement.
These were not the achievements of a solitary individual work-
ing in isolation. As an innovator Llewellyn was swimming with
the tide: up to 1930 he was more acolyte than pioneer of legal
realism; his contributions to legal education and to the study of the
legal profession, and still more so to the Uniform Commercial Code
were as much the products of joint enterprise as of individual effort;
although The Cheyenne Way broke new ground in anthropology,
no common lawyer could claim to have invented the idea of
approaching law through actual cases. It must also be remembered
that by the time he rose to eminence his world was too large and
too complicated to be dominated by a few individuals. In paying
tribute to Llewellyn's achievements we do him no dis-service by
putting them in a proper prospective.
'So much for his contributions as a pioneer, but what of his
significance for the future?' a sceptic may ask. 'From now on why
should anyone read Llewellyn? In particular, why should those who
are offended or puzzled by his style of writing go to the trouble of
studying his works?' These are fair questions: opinions will differ
on the answers. In my personal judgment several specific works will
continue to repay study for many years to come. The Cheyenne
Way is a pleasure to read, is rich in aperc;us and contains the best
introduction to the 'law-jobs' theory; this is further developed
in 'The Normative, the Legal and the Law-Jobs', which is
Llewellyn's most substantial theoretical paper; The Bramble Bush
is still capable of firing the enthusiasm of beginners and, at the very
least, makes good bed-time reading for the convinced Karlo-phile.
It should not, however, be treated on its own as a scholarly con-
tribution to juristic thought. The paper on 'The Theory of Legal
Science' contains one of the sanest discussions of this topic in print;
no student of appellate judicial processes can afford to ignore The
Common Law Tradition, despite its defects; it is not easy to read
and the gist of its argument is best obtained from secondary sources,
but it is too rich in suggestive insights to be ignored. A number of
essays on specific topics are still of value, and this is particularly the
case with most of the articles on contract and commercial law of the
middle period. The same is true to a lesser degree of his writings on
the legal profession, although these have to some extent been over-
taken by events. Llewellyn's comments on other jurists are often
THE SIGNIFICANCE OF LLEWELLYN: AN ASSESSMENT 369
penetrating. The indexes to Jurisprudence and The Common Law
Tradition are useful in this respect, but the richest source is Law in
Our Society. Otherwise the unpublished writings, of which Law in
Our Society and The Theory of Rules are the most substantial, are
mainly of interest to specialists. So too is Cases and Materials on
the Law of Sales, which still contains some rich ore for the sales
scholar. Among the less demanding works, two pieces of advocacy
are my personal favourites: Llewellyn's broadcast on behalf of Sacco
and Vanzetti and the edited version of his general statement to the
New York Law Revision Commission about the Uniform
Commercial Code.
So much for particular works : to answer the sceptic's questions
at a more general level it is advisable to revert once more to
Llewellyn's basic concerns. Four preoccupations underlie much of
his thought. Two are shared to some extent by most other jurists,
two are relatively unusual. The first is how to reconcile the need to
generalize and to simplify with the need to take account of the
uniqueness and the complexity of each individual situation. This
applies equally to normative and to empirical contexts. Llewellyn's
concern with this problem is reflected in his suspicion of all forms of
very broad generalization, including purported universal prin-
ciples of natural law and many accepted formulations of legal rules;
but it is also to be seen in his recognition of the need to work
towards 'scientific' generalizations of fact and broad, simply stated,
principles to guide action. The concept of 'situation sense', his
advocacy of resort to narrow categories and the flexible concepts
of the Uniform Commercial Code all represent attempts to resolve
this dilemma. So, too, in a rather different way, was the case method
of The Cheyenne Way in its emphasis on the search for general
illumination from the study of unique events. The central precept
of Llewellyn's realism, 'see it fresh', was a reminder of the need to
stay close to the actual and the particular and thus to avoid the
chief pitfall of formalism, that of oversimplification through re-
moteness from day-to-day reality; whereas the other precept of
realism, 'see it whole', emphasised the need for a coherent frame of
reference. Cautious striving towards the establishment of significant
patterns, as embodied in the concept of 'situation sense', was
Llewellyn's main formula for resolving the basic dilemma.
Another concern, also shared by many jurists, is how to reconcile
370 KARL LLEWELLYN AND THE REALIST MOVEMENT

the need for stability and the need for adaptation on the part of
human institutions. Llewellyn's espousal of the Grand Style repre-
sents his general attitude. The idea of recapturing a method of
evolutionary change satisfied at once his love of the traditions of
the common law with his recognition of the need for continuous
movement in a world of change.
Llewellyn's next concern reflects the strains in his make-up that
have been roughly characterized as 'the poet' and 'the lawyer'.
How to reconcile the values of 'vision' and 'imagination' with the
more austere values of intellectual discipline is a theme familiar to
physical scientists. It seems less common in jurisprudence. To an
unusual urge to find outlets for imaginative self-expression in legal
scholarship, add a lack of stylistic inhibition and a few minor
idiosyncrasies and we have at least gone some way towards account-
ing for the strangeness of the Llewellynesque.
Fourthly, while it is not uncommon for theorists to seek a rap-
prochement between 'theory' and 'practice', Llewellyn's persistent
urge to operate at the level of participant working theory is rare in
jurisprudence, if not unique. Many of those who have revolted
against the Royal Tennis Tradition, have rejected all jurisprudence
as being esoteric and useless; few, if any, have rivalled Llewellyn's
consistency in seeking to provide for participants usable theory,
drawing on the best modern thought available in a variety of dis-
ciplines, whilst maintaining a broad perspective and liberal values.
Llewellyn's emphasis on 'Juristic Method' is linked to this concern:
for participants law involves the practice of a set of crafts, in which
the attainment of excellence depends on skill, on know-how at least
as much as on know-what. Thus a working theory for participants
must deal adequately with legal technology. With some justification
Llewellyn considered this line of thinking to be his most original
contribution to jurisprudence.
The 'significance' of a theorist depends largely on the extent to
which his main concerns are considered important ('Was he asking
worthwhile questions?') and the relative quality of his response to
them ('How helpful is he in providing satisfactory answers?'). Some
of Llewellyn's concerns belong to the mainstream of juristic
thought, some have the value of rarity. All four that have been
mentioned are sufficiently fundamental to transcend the limits of a
particular time or place. This supports the judgment that although
Llewellyn was very much a man of his time, and very much an
THE SIGNIFICANCE OF LLEWELLYN: AN ASSESSMENT 37I

American, the solid core of his work is neither ephemeral nor

parochial.
There remains the question of quality. On this each must judge
for himself: to analytical jurists Llewellyn's use of language will
often appear loose and unnecessarily metaphorical; some social
scientists will find his approach to fact too anecdotal and impres-
sionistic, falling short of their standards for objective description;
his impatience with much of 'professional philosophy' is not likely
to win many friends among professional philosophers; some lawyers
will find him too fancy-free. Conversely others will find virtues
corresponding to these limitations. Despite his faults Llewellyn is,
in my view, the jurist who has the most to offer to anyone who is
concerned to adopt or to develop an approach to law which is both
solidly grounded and undoctrinaire and which escapes the con-
strictions of formalism. He may have been less original as a thinker
than Holmes, less erudite than Pound, less systematic than Lasswell,
but he has more to say than any of these on how to get to grips with
the problems of implementing this kind of approach in a variety
of contexts: in legal literature, in legal education, in advocacy, in
writing judicial opinions, in the study of tribal law or the law-
government of sub-groups, and in law reform. He was not a system-
atic thinker and he rarely said the last word on a subject. But his
capacity to fertilize, to stimulate and to put familiar things in a
fresh perspective is perhaps unsurpassed in the common law world.
At his best, he succeeded in his ambition to emulate the 'childlike
vision' of John Dewey, who was his ideal of the 'realist'. This is why,
of the many eulogies accorded to him during his lifetime and after
his death, that of his former colleague and friend Elliott Cheatham
was perhaps the most apt:
He might have written the lines, 'the world is so full of a number of things',
and he is one of the few men at law who will be remembered as persons a
century from now. He had vision and insight and the willingness to put
things as he saw and felt them -something of the freshness of outlook of the
boy, who saw and so said the King had no clothes on.
This is a tribute to genius, and it is deserved.
PART THREE

Conclusion
15
The Significance of Realism

The indeterminacy of 'realism' and the dangers of generalizing

about 'the realists' have been a recurrent theme of this book. Yet
the label has stuck and the modem reader, confronted with an
apparent morass of literature by 'realists' or about 'realism', may
quite reasonably ask for some general guidance. How much of this
literature deserves to survive? What is a good way to approach it
if one is to avoid both unwarranted generalization and barren con-
troversy? In particular, what should law students in North America,
the British Isles or elsewhere be encouraged to learn from the study
of American legal realism? A partial answer to these questions is
implicit in what has been said earlier. The purpose of the present
chapter is to deal with them in a more direct fashion.
Some of the more obvious pitfalls of interpretation are quite
easily avoided if the realist movement is approached on three differ-
ent levels, which may be roughly characterized as the historical, the
analytical and the applied. The realist movement should be viewed,
in first instance, not as a school of jurisprudence but as an historical
phenomenon. The starting point should be to identify the concerns
of particular individuals at particular moments in time. In Part One
some of the concerns of some key figures were sketched. From this
preliminary account, which should not be treated as a substitute for
a detailed history, it is apparent that the intellectual roots of the
realist movement were rather complex. From the many strands that
became entangled with each other, perhaps four sets of questions
can be singled out as having been of particular concern to leading
figures at Harvard, Yale and Columbia law schools during the
period of the rise of the realist movement: (1) What should law
schools be teaching, by what methods? (2) What should be the
scope and methods of legal research? Is an empirical science of
law possible and, if so, how can it be developed? (3) How far are
376 KARL LLEWELLY!i AND THE REALIST MOVEMENT

legal institutions, concepts, principles, and rules adequately per-

forming their proper role in a rapidly changing American society?
In particular, what is the actual and potential role of courts,
especially appellate courts, as agencies of legal change? (4) What is
the relationship between law as a discipline and other social sciences
such as economics, sociology, psychology and anthropology? How
can communication and cooperation between law and the social
sciences be extended?
These were, of cours&, not the only questions that were ot concern
during this period, individuals differed in the priority they attached
to them and -the issues were not always posed so starkly or in
identical terms. However, such questions did represent a dominant
focus of attention, and certain general points can be made about
them. First, these are not, in first instance, 'ultimate' or 'philoso-
phical' questions. One of the safer generalizations that can be made
about realists from Corbin (or Gray) to Llewellyn or Douglas or
Moore is that they did not look on themselves as philosophers. It is
to their credit that they perceived that there was some connection
between legal philosophy and the problems of legal education,
legal research and legal literature, but their primary concern was
more with the latter than with the former. Yet much of the second-
ary literature, especially that which has emanated from England,
pictures 'the realists' as legal philosophers who gave imperfect
answers to philosophical questions about the nature of law rather
than as scholar-teachers who made valuable contributions to the
discussion of a medley of less fundamental issues. While it may be a
valid exercise to subject the views of any writer to philosophical
scrutiny, such an exercise may have a distorting effect unless it is
made clear that philosophical questions were tangential to his con-
cerns. A second point is that the realist movement grew up in the
atmosphere of the 'revolt against formalism'. For many American
jurists, from Holmes to McDougal, the major irritant was an
approach and attitude to law of which Langdell and his followers
became the chief symbol. A shared enemy provided a unifying
element, but there was divergence both in the grounds for attack
and even more so in the remedies proposed by way of alternative.
Thus Holmes, Gray and Frank all in different ways provided
rationalizations for the practising lawyer's scepticism of the clois-
tered, library-bound academic. But in so far as they had any con-
structive alternative to offer, their solutions tended to be rather
 THE SIGNIFICANCE OF REALISM 377
different. At Yale in the period immediately after I9I3, Corbin,
Hohfeld and Cook while sharing with their opponents a tendency to
concentrate on appellate court judgments, used the weapons of
analytical jurisprudence to show that the 'over-logical' adherents of
the deductive model of judicial reasoning (whoever they might be)
had been indulging in 'pseudo-logic'. Their 'constructive' contribu-
tions, of which Corbin's work on contracts is the outstanding
example, tended to be at a less general level. The Scientists and
the Prudents at Columbia followed in the footsteps of I
Pound and
Holmes in maintaining that law should not be treated as an autono-
mous, self-contained discipline, but should be set clearly and con-
sistently in its social and economic context. But while the Scientists
took their first faltering steps outside the library and, in the view of
many, fell flat on their faces, the Prudents combined a traditional
interest in vocational training with a more complacent view than the
Scientists of the problems of integrating law and the social sciences.
Thus a united front was not maintained against the common enemy,
and after the Columbia crisis the realist movement became too
fragmented for generalization to be fruitful. That realism began to
be treated as a single phenomenon after the crucial split is best seen
as one of the ironies of history. It may be another that the lawyers
wooed the social scientists before the latter were ready for them.
Analytical treatment of the ideas of leading realists presents some
problems. Much of their work, including some of the best, was not
intended as a contribution to general jurisprudence and it is not easy
to isolate passages which are potentially of general significance or
lasting value from those which were mainly directed to ephemeral
or parochial concerns. In the literature of legal realism are to be
found intelligent discussions of such topics as the nature and func-
tion of law, classification, the relationship between law and the
physical and social sciences, the nature and functions of legal con-
cepts, legal reasoning, interpretation of statutes and cases, corporate
personality, the role of fictions, symbols, ritual and myths in law,
the nature of judicial processes, as well as of topics which are not
commonly associated with 'Jurisprudence'. One lesson to be
learned from viewing the realist movement in its historical context
is that analytical treatment of ideas and theories associated with
'realism' must start with particular writings of named individuals.
Without attempting to provide a comprehensive guide to the
literature of legal realism, it may be useful if I give my personal
378 KARL LLEWELLYN AND THE REALIST MOVEMENT

evaluation of the work of those individuals, apart from Llewellyn,

whom I have treated as the leading pioneers of the movement-
i.e. Corbin, Hohfeld, Cook, Moore, Oliphant and Frank. I have
already ventured the opinion that Llewellyn is much the most
important theorist among the realists. What of the others? How
much of their work is still worthy of attention? It is probably fair to
say that of the remaining six, Hohfeld has the strongest claim to be
treated as a theorist of the first rank. His work on Fundamental Legal
Conceptions is still often taken as the starting point for discussion of
'rights' and related concepts; although his analysis has been carried
further by others, and there are grounds for believing that he was
anticipated by Bentham in most important respects, the work
deserves to rank as a classic. Hohfeld's less well-known paper, 'A
Vital School of Jurisprudence and Law', also repays study.
Corbin will continue to be read for a long time as one of the great
contract scholars, and, more generally, his work in that field pro-
vides a possible model for those who are seeking a non-formalistic
method of analysis and exposition of substantive law without wish-
ing to make a radical break with tradition; but his more general
writings are now of little more than historical interest. Herman
Oliphant, too, is more likely to be remembered for his contribution
to events at Columbia and Johns Hopkins than as an original or
distinguished thinker. As for Walter Wheeler Cook, his writings
on conflicts continue to serve as a useful irritant to specialists in the
field; his views on 'the scientific analogy', especially as set out in the
paper 'Scientific Method and the Law', represent his most import-
ant theoretical contribution; this aspect of his work deserves to be
reassessed in the light of recent developments in the philosophy of
science. The time is also ripe for a reappraisal of the work of Under-
hill Moore. While there may be force in the criticism that his
parking studies were based on too simplistic an interpretation of
behavioural psychology, it has yet to be established whether, and
if so in what respects, the theoretical basis of Moore's attempts to
develop an empirical science of law was misconceived. It would not
be entirely surprising if Moore were eventually to be recognized as
one of the more original thinkers among the realists, perhaps even
as an unfulfilled genius.
There remains Jerome Frank. The fact that his work is eminently
readable will no doubt ensure that he will continue to be read. It is
to be hoped that in future law students and academic commentators
 THE SIGNIFICANCE OF REALISM 379
will pay more attention to Courts on Trial than to Law and the
Modern Mind. There can be little doubt that he perfonned an
important service by showing up the distorting influence of 'appel-
late court-itis'. Clever rather than wise, a dilettante intellectual
rather than a scholar, a brilliant controversialist, but somewhat
erratic in his judgments, in his juristic writings Frank exhibited the
strengths and weaknesses of a first-class journalist.1 His essential
contribution was to complement Holmes in the role of spokesman
for the bar against the Ivory Tower tendencies of academic lawyers.
The American legal profession has been fortunate in having had
in this role two men, who in different ways were both eloquent and
immune from accusations of anti-intellectualism.
There is much more to the literature of realism than the writings
of a few individuals. There is first of all a mass of detailed studies
which could be considered to be to a greater or lesser extent applica-
tions of 'a realist approach'. There is also a great deal of writing
about realism, or provoked by it. Even their most severe critics have
acknowledged that many realists were stimulating and provocative.
Professor Hart has suggested that some of the American literature
on realism can be illuminatingly read as a debate. 2 The suggestion
is a good one, but it may be more appropriate to see the position
in tenns of a series of debates on a variety of issues. Unfortunately the
standards of debate in modem jurisprudence have tended to fall
short of those of the mediaeval disputation. Llewellyn, who felt
strongly that he had been regularly misrepresented and misunder-
stood, had some scathing things to say about polemical
jurisprudence:
Though
(a) jurisprudes are mostly lawyers, so trained in the rhetoric of contro-
versy, with
(i) its selective, favorable posing of issues, and
(ii) its selection, coloring, argumentative arrangement of facts, and
(iii) its use of epithet and innuendo, and
(iv) its typical complete distortion of the advocate's vision, once he
has taken a case, so that he ceases to even take in any possibility
which would work against him (as especially in the prevalent
'romantic' type of advocacy), that
(b) it has proved necessary to police their work as advocates by
(i) forcing them to define issues by a careful system of phrased
pleading, served back and forth with opportunity for answer, under
the supervision of a responsible and authoritative tribunal, and
380 KARL LLEWELLYN AND THE REALIST MOVEMENT

(ii) limiting their arguments to the issues so drawn, and

(iii) confining the 'facts' to which they can resort to a record, and
(iv) barring guilt by associayon, or by imputation, or without proof
of particular offense, etc., yet
(c) in Jurisprudence every man
(i) states his own issue, misstates the other man's issue, beclouds
the or-any issue, evades the or-any issue, etc., uncontrolled by
procedure or by answer, or by authority (and cases where a
jurisprude has stated an issue fairly are museum-pieces), and
(ii) uses his rhetoric also without control, and
(iii) is free to dream up 'facts' even by anonymous imputation, and
(iv) consequently always rides his strawman down.
(d) Whereas in law one party always loses, or each must yield something,
in Jurisprudence there is thus Triumphant Victory for All. This
makes for comfort, if not for light. 1
Anyone approaching the polemical literature on realism would be
wise to heed this warning and to be selective in what he chooses to
read. The cruder misrepresentations are best ignored, as are some
of the wilder statements of some people who have been labelled as
'realists'. Thus it is best to discount as misleading allegations that
'the' realists favoured totalitarianism or unfettered official discretion
or that they denied the very existence of rules or that they espoused
extreme versions of economic determinism, moral nihilism or
psychological behaviourism. It should be abundantly clear that Karl
Llewellyn never espoused such views; if passages supporting such
interpretations are to be found in the writings of one or more in-
dividuals who might reasonably be identified as 'realists', it would
not be difficult to show that they were untypical or peripheral to
the main concerns of the core members of the realist movement.
'Debate' at this level tends quickly to deteriorate into a sterile form
of witch-hunt.
While individual realists have often been the victims of mis-
representation, even this kind of misunderstanding has had some
positive aspects. The process of exposing errors has stimulated
critics to clarify their own ideas. Fuller and Kennedy, for example,
in discussing realism have made interesting contributions to the
perennial debate between Natural Law and Positivism.' John
Dickinson, Karl Olivecrona and H. L. A. Hart are among those who
have done work of lasting value in the process of showing why it is
inadequate to define law in terms of predictions, or what is wrong
with the belief that 'talk of rules is a myth' or why the notion of
 THE SIGNIFICANCE OF REALISM 381
'legal right' cannot be elucidated simply in terms of brute fact. 1 It
is of relatively minor importance that it is not always easy to identify
passages in which these ideas were clearly expounded, for exposure
of error can be illuminating irrespective of whether it has in fact
been prevalent or has not even been subscribed to by a single pro-
minent person. Jurisprudence seems to need its Aunt Sallies.
Those who have a taste for disputation can find some illuminat-
ing material on some issues which might still be considered to be
'live'. As already indicated, the scepticism of practitioners about the
systematizing inclinations of some academic lawyers is dramatized
by Holmes's attacks on Langdell and his colleagues; Frank articu-
lated other aspects of the practitioner's dissatisfaction in his attack
on 'appellate court-itis'. Dickinson, Wechsler and Dworkin are
among those who, in different ways, have subtly defended the
need for principled decision-making and the Rule of Law in face of
the view that judicial creativity is both inevitable and desirable.•
Llewellyn's typology of the Grand Style and the Formal Style pin-
points a recurrent strain which is not confined to the work of judges.
While the case for the Grand Style has been made with force and
eloquence, the defenders of the Formal Style have tended to be less
articulate. Partial defences have been made in terms of 'judicial
restraint' and 'neutral principles'; students of the English scene in
particular have had in recent years to face the question whether
emphasis on judicial law-making may not sometimes be a form of
conservative politics masquerading as radical jurisprudence.1 But a
fully argued case, perhaps in terms of the functions of formalism, has
yet to be made in the modern context.
In respect of empirical investigation of the law in action, realists
have had to face attacks on more than one front. On the one hand,
many lawyers take the view that such enquiries should be left to
social scientists, thereby raising questions as to whether, and, if so,
when, it is desirable or feasible to treat law as an autonomous dis-
cipline rather than as part of the behavioural sciences; on the other
hand, charges of 'barefoot empiricism' and 'naive realism' have
been levelled against some realists who, like Llewellyn and Frank,
were sometimes prepared to rely on common sense, experience and
intuition as sources of information and insight. Related to this is the
fact that the espousal by Cook, Moore and others of various versions
of 'the scientific analogy' produced a variety of sceptical reactions
from within the realist movement as well as from without. Realists
382 KARL LLEWELLYN AND THE REALIST MOVEMENT

were largely pioneers in the development of an empirical science of

law and the 'debate' in this area even now remains at a relatively
unsophisticated level.
Debate and disputation no doubt have a useful role to perform in
the development of juristic thought. But as one hacks one's way
through the tangled undergrowth of confused and confusing
jurisprudential controversy one is left with a strong impression that
a great deal of it has been artificial and unnecessary, as well as
repetitive. A puzzling question is why has realism been so con-
troversial? Granted the dangers of generalizing about 'the realists',
if there is one thread that runs consistently through the work of
American jurists from Holmes through Pound and the pioneers of
the realist movement to Lasswell and McDougal and beyond it is
this: that there is more to the study of law than the study of a
system of rules; that for most purposes legal doctrine should be seen
in the context of legal processes and legal processes should be
seen in the context of the totality of social processes. This surely
deserves to be a truism; it is demonstrably part of 'the neglected
obvious', but it is hardly the stuff of persistent controversy. Few
jurists, few practising lawyers, and few academic lawyers have con-
sciously and openly opposed the proposition that it is desirable to
adopt a broad perspective and consider the law in its social con-
text. The uncontroversial nature of the core of realism is illustrated
by the current ambivalence towards the realist movement of many
American law teachers, who sometimes speak of 'realism' as a pass-
ing phase while acknowledging its continued vitality. Their attitude
can best be expressed by adapting a well-known incantation:
'Realism is dead; we are all realists now'.
While there may be pockets of resistance to the development of a
'contextual approach', for most law teachers in the United States
and elsewhere in the common law world the crucial question is not
Whether? but How? Here Karl Llewellyn's evaluations of the
realist movement come into their own. For he maintained that its
main contribution was not to be found in the more general ideas,
but rather in their determination to apply in a 'sustained. and pro-
grammatic' way ideas which had been made almost commonplace
by Holmes and Pound at the level of abstract theory, but the
practical implications of which had not been fully realized. 8 In 1931
he wrote:
 THE SIGNIFICANCE OF REALISM 383
What is as novel as it is vital is for a goodly number of men to pick up ideas
which have been expressed and dropped, used for an hour and dropped- to pick
up such ideas and set about consistmtry,persistentry, insistentlv to carry them through. •
Llewellyn's final evaluation of the achievements of the realist
movement would appear to have been that there was relatively
little new or controversial about the beliefs shared by most of its
members, that their occasional overstatements at a theoretical level
were of minor significance, and that the chief characteristic of the
movement was that its members wished to try to act on their beliefs,
especially in research and teaching, in a more sustained and system-
atic way than the great majority of their predecessors had done.
Thus his argument appears to be that the realist movement should
be judged primarily by its fruits, especially by the extent, the
quality and the value of the research and writing it inspired, rather
than by the worthwhileness or originality of its contributions to
legal theory. Thus the Columbia casebooks, empirical research pro-
jects, reforms in legal education, changes in the style and orien-
tation of contributions to law reviews, the Uniform Commercial
Code, and the resurgence of the Grand Style were better indicia of
the achievements, and failures, of the realist movement than its
contributions to jurisprudence for the hundred. In short, the sug-
gestion is that the main achievement of the movement was to
concretize sociological jurisprudence.
Llewellyn's suggestion is attractive. It should be obv.ious that the
realist movement and the work of individual realists would of
necessity feature prominently in a balanced general appraisal of
developments in the United States in legal educauon, legal research
and legal literature during the period I920 to 1970.
If it is fair to say that the main achievement of the realist move-
ment was to concretize sociological jurisprudence, then no study of
their work should be confined to discussions of very general topics.
Perhaps the most important lesson to be learned from a study of
realism is a partial answer to the question: What difference can it
make in practice to adopt a sociological (or realist or contextual)
approach to law? One simple way to set about obtaining an elemen-
tary answer is to compare and contrast examples of legal 'products'
in the making of which formalist and contextual ideas have been
operative. Of course, any attempt to chart the 'influence' of the
movement with precision could easily lure the unwary into crude or
subtle pitfalls of the 'post hoc, propter hoc' variety. The chapters
384 KARL LLEWELLYN AND THE REALIST MOVEMENT

on the Uniform Commercial Code illustrate some of the difficulties

of relating general ideas to particular legal artifacts. This kind of
enquiry is elusive, but it is not impossible, at least at a common-sense
level. Thus it is both feasible and useful even for undergraduates to
undertake elementary analysis along these lines. For instance,
judiCial opinions can be compared and analysed in terms of the
Grand Style and the Formal Style or similar, more refined, models;
it is illuminating to compare and contrast the Sale of Goods Act,
18g3 with Article 2 of the Uniform Commercial Code, the
approaches of Corbin and Williston and Pollock to, e.g., the Statute
of Frauds, or Salmond on Torts with Atiyah's Accidents, Com-
pensation and the Law. Casebooks based on Langdell's prototype
can be compared and contrasted with compilations of 'Cases and
Materials' such as those prepared at Columbia in the 1930s or at
Yale in the early 1g6os. It is interesting to consider the work of
Willard Hurst in juxtaposition to that of writers who have narrower
conceptions of legal history. Further examples can easily be culled
from the literature of international or comparative law or, indeed,
from almost any other field of legal endeavour. Even in quite elemen-
tary exercises of this kind it is, of course, important to keep asking
to what extent differences between 'approaches' or particular pieces
of work can be explained in terms of operative ideas which could be
categorized as 'jurisprudential'. The answers will not always be
obvious. And this, too, may help to drive home the lesson that
jurisprudence need not be a subject apart.
If law students are able to do such elementary exercises in com-
parative analysis, it should not be beyond the capacity of legal
scholars to undertake this type of enquiry in a more sustained
manner on a broader front. Here, as elsewhere, substantial progress
will be unlikely without adequate support from theory. In this
respect there are limitations on the value of the literature of realism.
In so far as it is a fair verdict that the most worthwhile achievements
of the realist movement were at the 'applied' level, this involves an
admission that it made a relatively insignificant theoretical con-
tribution to the development of a systematic sociology of law. This
is the main complaint of Lasswell and McDougal. Whereas most
critics have tended to find the 'realists' interesting only in so far as
they were seen as 'extremists' who went too far, Lasswell and
McDougal have argued that they were moving in the right direction,
but that they did not go far enough. 10
 THE SIGNIFICANCE OF REALISM 385
Myres McDougal himself in his early days at Yale was an
enthusiastic disciple of realism; but after a time he sensed that
there was something lacking in the ideas of his mentors. His need
was satisfied by the systematizing tendencies of Harold Lasswell
who had already made a profound impact on American political
science. For thirty years Lasswell and McDougal have collaborated
and crusaded under the banner of 'Law, Science and Policy'. LSP,
as it is popularly known, has close affinities with the ideas and per-
spective of Jeremy Bentham. It is a combination of utilitarianism
and Freudian psychology, supplemented by some of the insights of
American social science, and encased in an elaborate terminology
which has been relentlessly expanded and defined by Lasswell and
his associates. LSP has been applied extensively to the field of inter-
national law, especially by McDougal himself, and in a number of
other fields by a rather variegated group of disciples. 11
In a simplified account of the history of Anglo-American juris-
prudence LSP can be seen as almost completing a cycle which
began with Bentham. His comprehensive theory was succeeded by
the narrower but no less rigorous gymnastics of English analytical
j;risprudence. Through Pound American jurisprudence regained a
breadth of perspective but lost much of the conceptual rigour of
Bentham's approach; nor did Pound's theories prove to be very
effective as tools of detailed analysis. Holmes too produced pene-
trating insights without providing usable tools for exploiting their
potential. For a brief period before his death Hohfeld promised to
reunite exact analysis with a broad vision, but the promise was not
fulfilled. The realist movement inspired a series of attempts to work
out in detail the implications of sociological jurisprudence in the
context of the special concerns of a group of jurists most of whom
were law teachers. A major stimulus to LSP was a feeling that the
ideas and methods of the realists were not sufficiently systematic and
that in particular they had failed to adopt an adequate framework
of concepts and explicitly stated values. One outcome was the return
of Jeremy Bentham in modern dress.
This particular cycle is not quite complete. For LSP has not
gained widespread acceptance. Too often its disciples appear to
stagger and groan under the weight of its elaborate paraphenalia
of definitions and check-lists. Parturiunt montes. . . . Those who
hav;e not accepted LSP have tended either to ignore it entirely or to
dismiss it' not so much on the basis of detailed criticism as on
386 KARL LLEWELLYN AND THE REALIST MOVEMENT

grounds of taste-that it seems to be wearisome, or too pretentious,

or unpalatable in some other way. The theory deserves better of its
critics, but to date the literature does suggest that so far LSP has
been viewed as a somewhat cumbersome tool-kit and it has failed
to be used as a weapon in the way that Bentham's ideas were used
by the philosophical radicals.12 One reason for this may be that
LSP has been seduced by the scientific analogy too far away from
informed common sense. The current revival of interest in Bentham,
combined with a more sympathetic understanding of the realist
movement, may hold out hope for the achievement of a rapproche-
ment in a form which will be more widely accepted.
A general framework for enquiry of this kind is badly needed, if
jurisprudence is to make significant progress in the coming years.
Such a framework could be of particular value in the formulation of
middle order theories-a task which, in my view, should be accorded
a high priority in the immediate future. For example, there is a
need for coherent working theories to guide the development of
legal education, literature for law students, and the work of law
reform bodies, such as the English and Scottish Law Commissions.
In developing countries there is too little useful theory to guide
change in the legal sector or to assist clear thinking about the poten-
tial contribution of law-trained personnel to strategies of economic
development and other aspects of nation-building. At the level of
description there is a dearth of usable hypotheses to act as catalysts
to the advancement of such promising fields as the comparative
sociology of the legal professions. In fashionable growth subjects
such as environmental control and poverty law, the evolution of
useful concepts and the formulation of testable hypotheses must also
command a high priority. These are just some examples of areas in
which we can still echo Holmes: 'We have too little theory in the
law rather than too much.'u
In the next phase of Anglo-American jurisprudence lawyers will
continue to look to the social scientists and to others for assistance.
There are indications that social science has more to offer us today
than it had in the twenties and thirties; similarly philosophers have
in recent years provided jurists with some usable techniques of con-
ceptual analysis. But it is important to guard against the tendency
to allow vague calls for interdisciplinary co-operation to perform the
role of a ritual incantation-a hopelessly optimistic prayer for a
deus ex machina. One of the main lessons to be drawn from the
 THE SIGNIFICANCE OF REALISM 387
story of the realist movement is that it is easy to ignore or to under-
estimate the difficulties, theoretical and practical, of sustained inter-
disciplinary work. It is easy for inflated optimism to be replaced by
sour disillusion; it is difficult to strike a balance between professional
self-confidence and willingness to seek help from outside. Anglo-
American legal culture has its share of chauvinists and masochists
-those who would go it alone and those who would reject most of
the rich intellectual heritage of the law. Such extreme views could
easily provoke some futile polemics, but they represent in exag-
gerated form two broad alternative strategies for developing a con-
textual approach to law: the one approach emphasises broadening
the study of law from within, building on a long tradition of human-
istic scholarship by lawyers and jurists. The other emphasises the
value of looking at law from without, through the spectacles of one
or more other disciplines. Jurisprudence is broad enough to accom-
modate both strategies and many variations on them.
In the interpretation presented in this book, the leading American
realists by and large chose the strategy of broadening the study of
law from within. Law was their primary discipline and they were
proud of it. As sociologists or psychologists or anthropologists or
economists or philosophers they were, at best, intelligent amateurs.
They have most to teach those who wish to treat law as their primary
discipline, while keeping it steadfastly in its place as one of the
great humane studies. From this point of view a primary function
of Jurisprudence, and of jurists, is to serve as a conduit, to channel
into the intellectual milieu of the law, concepts, techniques, insights
and information from neighbouring fields. Seen thus, 'traditional'
Jurisprudence still has an important role to perform.
In developing working theories and usable hypotheses there will
be some of us who will feel attracted simultaneously by thinkers
as seemingly diverse as, for example, Bentham and Llewellyn. Both
are products of the intellectual milieu of the common law and they
have more in common than may at first appear. In so far as there
are differences, one of the problems is to strike a balance between
the systematic generalizing tendencies of a Bentham or a Lasswell
and the sensitivity to the nuances of the particular of a Karl
Llewellyn. Where a healthy balance can be struck, perhaps there
lies the best hope for the preservation and exploitation of what is
worthwhile in the common law tradition.
A F T E RWOR D

Framing Llewellyn1

Introduction

The original objective of Karl Llewellyn and the Realist Movement

(hereafter KLRM) was to provide a stimulus and a guide rather
than a substitute for reading Llewellyn’s writings. When I was
invited to write an afterword to this edition of the book, I was
concerned not to undermine this aim. The decision not to try to
revise or update the original text forty years on was easy; to pro-
vide systematic updates through the footnotes would have been
distracting; to attempt a comprehensive critical survey of the lit-
erature since 1971 on Llewellyn, the Realist Movement, and the
Uniform Commercial Code would have required much more space
and would have been a further distraction from Llewellyn’s own
writings. What follows is divided into two parts: Part A is a personal
memoir which provides some background to my connection with
Llewellyn, how I came to put his papers in order and write this
book, the aftermath of its publication, and my relations with Soia
Mentschikoff Llewellyn and Herbert Hart. Part B, intended more
for specialist readers, reflects on selected developments since 1971
that bear on the book, on Llewellyn’s continuing significance, and
on some unfinished agenda. It also provides links to the literature
of the past forty years. Rather than rely solely on fading memories,
Part A draws heavily on contemporaneous documents and prior
accounts written closer in time.2

1
I am grateful to Terry Anderson, Clayton Gillette, Andrew Halpin, Nicola Lacey,
Fred Schauer, and Penelope Twining for helpful comments and suggestions.
2
In particular, W. Twining, The Karl Llewellyn Papers (Chicago: University of
Chicago Law School, 1968) (hereafter KLP); Law in Context: Enlarging a Discipline
 a ft e r wo r d 389

Part A. KLRM: a personal memoir

I am sometimes asked if I was predisposed to be attracted to Real-

ism. Two incidents that took place shortly after I first graduated
from Oxford in 1955 provide one clue. At Oxford the only legal
subject that had caught my interest had been jurisprudence – but
this was in tension with my parents’ relentless emphasis on prac-
ticality. So I set out to learn about the realities of qualifying as a
barrister. My first stop was the office of Gibson and Weldon, a pri-
vate crammers, who efficiently prepared people for the Bar exami-
nations. I was interviewed by a cynical man who urged me to be
realistic. The examiners want the facts as set out in the textbooks
and nutshells, not independent thought, speculation, personal
opinions, or other academic waffle. What were needed were facts,
facts, facts, and only facts. This was sound, practical advice from a
hard-headed Gradgrind, but not what I wanted to hear.
Shortly afterwards I visited a solicitor’s office in order to learn
about the realities of legal practice. He specialized in personal inju-
ries cases. I told him that Salmond on Torts had been my favorite
textbook. He said in effect: ‘You don’t want to believe what you
read in the books. They are quite misleading. We usually represent
insurance companies and we always settle. Anyway, the whole per-
sonal injuries system needs a radical overhaul.’ I experienced cul-
ture shock. I felt that I had been betrayed by Salmond – how could
you understand the law relating to personal injuries or the tort of
negligence if you know nothing about insurance, settlement, and
alternatives to the common law action for negligence?3

(Oxford: Oxford University Press, 1997) (hereafter LiC); The Great Juristic Bazaar:
Jurists’ Texts and Lawyers’ Stories (Aldershot: Ashgate, 2002) (hereafter, GJB); and
Globalisation and Legal Theory (Evanston: Northwestern University Press, 2000)
(hereafter (GLT). See also General Jurisprudence: Understanding Law from a Global
Perspective (Cambridge: Cambridge University Press, 2009) (hereafter GJP).
3
I still hold that the edition of Salmond I encountered was deeply misleading. Later edi-
tions made a few concessions to the point. Patrick Atiyah’s Accidents, Compensation and
the Law (1st edition, 1970, 7th edition, by Peter Cane, Cambridge: Cambridge Uni-
versity Press, 2006) is the classic prototype for an alternative perspective. Recently,
when I told this story about Salmond, a distinguished legal philosopher said that
one learns about such matters in courses on civil procedure. That is not true when
the courses and books belong to the same intellectual tradition as Salmond – you
just learn the rules. In my view, doctrinal texts like Salmond complement contextual
works, like Atiyah’s, not vice versa. On the working precept “context first” and rules as
responses to problems, see William Twining and David Miers, How To Do Things With
Rules (Cambridge: Cambridge University Press, 5th edition, 2011) ch. 2.
390 aft er wo rd

An interest in theory in tension with insistent demands for prac-

ticality; then two sharp doses of realism: you must learn up the law
in books, but don’t believe a word that they say. There are many
ways to be realistic and many different kinds of things to be realis-
tic about. The relationship between the law in books and the law
in action, and more subtle ways of articulating such tensions, has
always been central to my academic concerns. So, yes, I was proba-
bly predisposed towards American Legal Realism. But my interpre-
tation of “R/realism” has had an English bias: I have never thought
that it was only or even mainly about adjudication; I have never read
Llewellyn or other Realists as saying that rules were radically inde-
terminate, or illusory, or unimportant; and I have never thought
that concern about being “realistic” about law was peculiarly Amer-
ican. As a result I have been quite critical of commentators who
treat Realism as an American exclusive, or equate “realism” with
a form of “rule-skepticism”, or restrict the idea of “R/realism” to
adjudication generally or even to adjudication about questions
of law in American appellate courts. I treat Realism with a capital
R as an historical phenomenon – a peculiarly American intellec-
tual movement that rose and faded between the two World Wars –
and “realism” with a small “r” as a concept at the centre of ques-
tions about what is involved in understanding law. The history of
the Realist Movement sets a context for Llewellyn’s writings, but I
could have been more emphatic in KLRM that Llewellyn’s contin-
uing interest depends more on the extent to which he illuminates
relations between theory and practice and what it means to be real-
istic about law.

How I came to Chicago and Llewellyn

It was partly by chance that I came to work with Llewellyn. By 1956 I

had decided that I wanted eventually to pursue an academic career
in law, but in Africa rather than the United Kingdom. I also wanted
to learn more about jurisprudence and to see something of the
United States. I heard that Professor F. H. Lawson, the professor of
comparative law at Oxford, was responsible for placing promising
Oxford graduates in leading American law schools. When I told Law-
son of my interest in the United States and jurisprudence, he asked
 a ft e r wo r d 391

me which living American jurists I most admired. I needed notice

of that question, for apart from adulatory references to Holmes and
Pound and denigratory references to madcap Realists – jazz juris-
prudence for a jazz age4 – American jurists had not featured in the
Oxford curriculum. I went away and read Fuller’s The Law in Quest
of Itself, which I found enthralling, and Llewellyn’s The Bramble Bush,
which I thought intriguing, but mystifying. I returned to Lawson and
told him that my first choice was Fuller and my second Llewellyn. So
I wrote to Harvard saying that I would like to come and sit at Pro-
fessor Fuller’s feet; I was not interested in obtaining a degree, but I
needed funding. Harvard responded kindly that they only had schol-
arships for degree courses, that I was a bit young, and I had anyway
missed the application date for the coming academic year. Having
learned my first lesson about American law schools, I applied to the
University of Chicago in a more conventional way and was awarded a
Commonwealth Fellowship to start in September 1957.
In KLRM, I have quoted my first impressions of Llewellyn and my
experience of him as a teacher, as I remembered them in 1963–4.5
I have nothing to add to these, except to correct a possible impres-
sion that I spent the whole academic year under his tutelage. The
terms of my fellowship required that I follow an intensive program,
which would justify the award of a JD degree after only one year of
study. I took courses given by Nicholas de Belleville Katzenbach,
Edward Shils and Edward Levi, Malcolm Sharp, J. B. Schneewind,
William Winslow Crosskey, Alison Dunham, and Max Rheinstein, as
well as a course on international commercial transactions taught by
the formidable team of Katzenbach, Llewellyn, Mentschikoff, and
Steffen.6 The University of Chicago Law School had a star-studded
faculty. I now regret not having seized the opportunity to take

4
C. K. Allen, Law in the Making (Oxford: Clarendon Press, 4th edition, 1946), p. 45.
5
KLRM at pp. 114–16.
6
The text also omits to mention that I nearly left Chicago after about two weeks
because I categorically refused to take Aaron Director’s “General Theory of
Price” – the basic introduction to law and economics – on the ground that my
fellow students told me that, if you disagreed with the teacher, you failed. This
was the year of Sputnik. I stormed into the office of my director of studies – Roger
Cramton, in his first quarter of teaching – and told him that I thought that I
had come to the University of Chicago, not the University of Moscow, and that I
refused to be brainwashed by someone whose ideology was diametrically opposed
392 aft er wo rd

courses by Harry Kalven, Walter Blum, Philip Kurland, or Kenneth

Culp Davis.7
So my contact with Llewellyn was in fact quite limited: I took
his course on “Law in Our Society”, I audited parts of his semi-
nar on appellate advocacy, and he supervised one paper. We estab-
lished an immediate rapport and I quickly became fascinated by
him both personally and intellectually. But it was not until later –
especially when putting his papers in order – that I began to get a
grounded sense of what he was about. Unfortunately, I did not take
Llewellyn’s course on Elements (I was an Oxford graduate!) and
in KLRM I underestimated its significance, an omission that I shall
rectify in this afterword.
After graduating from Chicago in 1958, I took up a teaching
post in Khartoum for three years and moved on to Dar-es-Salaam
in 1961. Almost my only direct contact with Llewellyn was that he
sent me a copy of The Common Law Tradition, with a characteristi-
cally generous inscription. I was generally preoccupied with the
excitement of institution building in newly independent countries,
adjusting common law ways of doing things to local conditions,
and keeping a few pages ahead of the class – in my first year I was
required to teach five different courses. However, by then Llewellyn
was profoundly influencing my approach, not only to teaching
jurisprudence, but also more generally to thinking about law in its
social, political, and economic context.8 A single episode illustrates

to mine. Fortunately, he caved in, because I was serious about leaving. Elsewhere,
I have recounted some subsequent clashes with Aaron Director, which are not
relevant here except that they illustrate differences between the worlds of Oxford
and the University of Chicago at the time, not least in respect of the prevailing
ideology and the arrogant sense of superiority of Oxonians. It took me several
months to appreciate the strength and sophistication of the culture of elite Amer-
ican law schools. (Manuel Atienza and Raymundo Gama, “Entrevista con William
Twining”, DOXA: Cuadernos de Filosofia del Derecho 32, 713–28, 2009).
7
The atmosphere and ethos of the University of Chicago Law School at the time
is captured well by George W. Liebmann, The Common Law Tradition: A Collec-
tive Portrait of Five Scholars (New Brunswick: Transaction Publishers, 2005). See
also Edward Shils (ed.) Remembering the University of Chicago: Teachers, Scientists and
Scholars (Chicago: The University of Chicago Press, 1991), especially the fore-
word and chapters on Milton Friedman, Harry Kalven, Frank H. Knight, Edward
Levi, Richard McKeon, Max Rheinstein, and George Stigler.
8
I have tried to capture some of this in “The Camel in the Zoo” in Issa Shivji (ed.)
Limits of Legal Radicalism (University of Dar-es-Salaam, 1986), reprinted in LiC,
ch. 2.
 a ft e r wo r d 393

this influence. At Oxford, Professor Herbert Hart had first aroused

my interest in jurisprudence and had introduced me to the then
prevailing methods of analytical philosophy. A year in Chicago had
modified, but not weakened my attachment to Hart’s approach.
When Hart’s The Concept of Law came out in 1961, I recognized
this as an important book, but unlike many others I was not over-
whelmed by it. I read it as a prolegomenon. I remember spending
an evening in Dar in December 1961 in heated discussion with a
visitor from Oxford who maintained that it was self-evident that
Hart’s book would from now on be the starting point for all seri-
ous jurisprudential discussion. I do not remember exactly what I
argued, but in retrospect it is clear that it must have been Llewelly-
nesque. Unfortunately, he proved to be right and what Hart later
called “that wretched book” became an obsession that continues
after fifty years.9 Whether or not this was an epiphanic moment, it
revealed an underlying tension in my attitude to my two jusrispru-
dential mentors, which needs to be probed in depth. Is it possible
to be a loyal disciple of both Hart and Llewellyn?
Karl Llewellyn died suddenly on 13 February 1962. I heard the
news quite soon afterwards in Dar-es-Salaam. In 1984 I recounted
the next stage as follows:
It may have been on a beach in Dar-es-Salaam that I heard the news of the death of
Karl Llewellyn. It was quite possibly the same beach on which we later played Frisbee
with the late Wolfgang Friedman, who had come out to teach about Law and Eco-
nomic Development . . . the same Wolfgang Friedman who in an earlier era had been
a forerunner of the English Realist Revolution . . . if indeed England has undergone
something that can be so described.
It was February, 1962. Academic news travelled fast in those days, for this was
the peak period of American, indeed Western, interest in Africa . . . the brief era of the
neocolonial honeymoon. This was the period in which a Scottish philosopher could
justify his transfer to the Sudan on the ground that Khartoum was more central

9
Hart to Twining, cited by Nicola Lacey in A Life of H. L. A. Hart: The Nightmare and
the Noble Dream (Oxford: Oxford University Press, 2004), p. 233. The context was
an invitation to visit Belfast to give some classes in 1967, when he indicated that
he was willing to talk about anything “except that wretched book”. In May 2011
the fiftieth anniversary of the publication of The Concept of Law was celebrated in
Oxford by a series of high-level seminars involving more than fourteen discus-
sants and commentators. The quality of commentary was high, the speakers were
all intimately familiar with the text, but I felt that Herbert Hart himself would
have been dismayed with this fixation on what he had intended as a prolegome-
non and he might well have suggested that it was time to move on.
394 aft er wo rd
than Aberdeen. Almost every week we entertained at least one visiting fireman from
the United States who was clocking up mileage, buying local carvings, selling Amer-
ican legal education, and passing gossip along the circuit.
I was upset by the news about Karl. I had found him an inspiring teacher; I was
fond of him and I knew that his premature death meant that his final statement of
his most general theory would never be completed. At the time I saw him as only one
of a number of teachers from whom I had learned much. But Llewellyn’s impact on
me was growing as I reflected on the implications of his ideas for academic law in
East Africa. They had more resonance than most other juristic ideas for young expa-
triates who were trying to make sense of the bizarre unrealities of the common law in
a social context, nay a climate, that was not hospitable to Carbolic Smoke Balls.
As an expatriate Englishman I naturally subscribed to the airmail edition of
the [London] Times. When it became apparent that the Times had not noticed
Llewellyn’s death, I quickly drafted an obituary and sent it off. In due course I received
a curt rejection, which implied that readers of the Times were not interested in obscure
American jurists. I was already well aware of the caricatures and sneering critiques
of American Realism in English textbooks of the time. Incensed, I decided to convert
the British public to Llewellyn by writing an article about him. Wishing to quote from
his marvelously rich, if cryptic, course materials on Law in our Society, but retain-
ing a gentlemanly concern for the niceties of copyright, I wrote to Soia Mentschikoff,
Llewellyn’s widow, for permission to quote from them. With a promptness never to be
repeated, she replied almost by return, suggesting that I should come to Chicago to
consult “one or two unpublished manuscripts.” She would fix it. So in 1963 I set out
from Dar-es-Salaam to Chicago, earning my fare by delivering a series of lectures on
customary law in East Africa, a late example of armchair legal anthropology.10

This account from 1984 is essentially accurate. The slightly sar-

donic tone was intended to signal the unreliability of memory and
the elusiveness of “realism”, with a nod towards “postmodernism”,
just coming into fashion in law at the time.

Excursus: Soia Mentschikoff Llewellyn11

At this point I need to introduce Llewellyn’s third wife and widow,

Soia Mentschikoff Llewellyn, who hardly features in KLRM and

10
Reproduced from “Talk about Realism” (Dewey Lecture, October 23, 1984) 60
New York University Law School 329, reprinted in W. Twining, The Great Juristic
Bazaar (Aldershot: Ashgate, 2002) at pp. 93–5, (original italics).
11
Soia was known professionally as Soia Mentschikoff, but socially she liked to be
called Mrs Karl Llewellyn. The main sources for this excursus, apart from firsthand
knowledge and numerous obituaries, are Connie Bruck, “Soia Mentschikoff, The
First Woman Everything” (The American Lawyer, 36, October 1982); Symposium
 a ft e r wo r d 395

then mainly in relation to the UCC. That was probably appropriate

for the book. But Soia was both an extraordinary person and a cen-
tral actor in the present story: she invited me to come to Chicago
to look at Karl’s papers; she lured me into putting them in order;
she was an essential source of information and reference point in
writing about Karl; she did much to keep his memory alive after
his death, not least when she was dean of the University of Miami
Law School (1974–82) and as co-author of the book based on his
materials for “Elements”. My wife became her intimate friend. Soia
treated me like a somewhat wayward son – bright-eyed and bushy-
tailed, but with some quirky ideas of my own.
Soia Mentschikoff deserves at least one full-scale biography and
it is sad that none has yet been completed. First, the basic facts:
born Moscow 1915; settled in New York, 1918; Hunter College, AB
1934; Columbia Law School, LLB 1937; private practice in New
York 1937–47 (partner, Spence, Hotchkiss, Parker and Duyree from
1944); Associate Chief Reporter, UCC; married Karl Llewellyn,
1947; visiting professor, Harvard Law School 1947–9; University
of Chicago 1951–74 (professorial lecturer, then professor, 1962);12
dean, University of Miami Law School 1974–82; (visiting professor
from 1967); died 1984.
Her public image is replete with hyperboles. Franklin Zimring
called her the “first woman everything”:13 inter alia, she was the first
woman to teach at Harvard Law School; the first woman partner of a
major U.S. law firm; the first woman president of AALS; and the first
woman listed as a possible U.S. Supreme Court nominee.14 In Miami

in Honor of Dean Soia Mentschikoff, 37 U. Miami L. Rev. (May–September, 1983);

Zipporah Wiseman, “Soia Mentschikoff” in R. M. Sakolar and M. L. Volcansek (eds.)
Women in Law (Westport, CT: Greenwood Press, 1996) and in American National
Biography (New York: Oxford University Press, 1998). See also Robert Whitman,
“Soia Mentschikoff and Karl Llewellyn: Moving Together to the University of Chi-
cago Law School”, 24 Connecticut L. Rev 1119 (1992). For a bibliography of her
main published writings see Wiseman (1996). The bulk of her professional papers
are in the Special Collections of the University of Chicago Library. In April 2012
most of her remaining papers, other than those to do with her deanship and the
Arbitration Project were transferred from Miami to Chicago.
12
The University of Chicago forbade joint appointments of spouses (a nepotism rule),
so Soia did not become a tenured professor until Karl died. This did not faze her.
13
Cited by Bruck (1982) op. cit. n.11.
14
She was twice nominated by her former colleague, Nicholas de Belleville Katzen-
bach.
396 aft er wo rd

she was known as “the Czarina” and as Snow White, who brought in
seven dwarfs, mainly young graduates of the University of Chicago
Law School, to transform the University of Miami according to her
own lights – or Karl Llewellyn’s. She was persuasive, inspiring, auto-
cratic, tough-minded, funny. She was a brilliant practical lawyer and
a superb fixer. She was repeatedly called “an artist in the law”, but
she wrote little.15 In 1971 she was judged by McCall’s magazine to be
one of the fifty women who had made the greatest contribution to
American society. She refused to be labeled a feminist.
She was a formidable personality. She was shrewd, she read peo-
ple well, and she could be very effective – some called it forceful or
cogent, others manipulative or domineering. One of her favorite
precepts was reputedly: ‘In any transaction, when you push the but-
ton, you’d better know who’s gonna die over there – because if you
don’t, it might be you.’16 Karl, who adored her, is reported as intro-
ducing her as a speaker with the words: ‘but you shall hear Soia,
my gal can sail ships’. One Miami colleague is reported as saying:
‘She always sets the terms of discussion, and in such a way that she
cannot lose. . . . You have to watch her all the time. She can smile
and eat you alive.’17
Of course, I had a different angle on Soia. As a student, my first
impression was of a large, imposing, grey-haired woman, soft-spo-
ken, with a no-nonsense style. I had difficulty following her teach-
ing, both because her voice was very low and what she said assumed
a commercial background that I lacked. The Llewellyns threw good
parties and in 1957–8 we went to their house several times. My wife
said that she had no dress sense. I did not see her as a dominant
character in the law school and I had little idea of her legendary
reputation.
Later, especially after the completion of the book, we became
part of the family. We saw her in the roles of dutiful daughter,

15
Her personal style is evident in “Reflections of a Drafter” 43 Ohio State L. Jo.
537 (1982) in which the term “horsing around” is used more than once to
describe the behavior of members of a legal elite during the preparation of the
UCC. See also the posthumous lectures (reconstructed by Irwin Stotzky) “The
Last Universal Discipline”, 54 University of Cincinnati L. Rev 695 (1986) and
I. Stotzky, “Soia’s Way: Toiling in the Common Law Tradition”, 38 U. Miami L.
Rev. 373 (1984).
16
Cited by Bruck (1982), op. cit.
17
Ibid.
 a ft e r wo r d 397

relaxed hostess, and intimate friend. Many viewed her as a Russian

Earth Mother. She and her mother attended the Russian Ortho-
dox Church regularly and on one memorable Easter we went with
them. “Mama Toi” made her daughter speak to her in Russian. We
went walking with her in Ireland, except we were more behind
than with. Soia longed to return to Russia – she had not been back
since she left and Karl worried that she would be held to ransom by
the Soviets. So one year at her house in Coral Gables we planned
a grand tour, sitting on the floor round a map of Russia. Soia had
very grand ideas about the itinerary, including going from Lenin-
grad to Tashkent by train. When I pointed out that there was no
railway connection, she took a pencil and drew a line on the map:
‘There is now’, she said. Somehow, that epitomised Soia. She did
visit Russia once before she died, but to our great regret we were
unable to go with her.
I loved and respected Soia. But there was one difficulty: I had to
cope with the biographer’s problem of a living widow – to maintain
professional detachment while ensuring her cooperation. She was
one of the two most formidable women I have ever had to deal with –
the other being my mother. How did I manage? First, she liked
and trusted me and left me to get on with it. Second, she did not
take archives (or history or biography) very seriously. If I had not
become involved, she would probably have dumped most of Karl’s
papers. She looked on them as relics and was amused by my fascina-
tion with them. Third, she genuinely respected my independence.
She realized that I was sympathetic to Karl, but that I needed to be
free to criticize, and that it was important that the book should not
be mere hagiography. And, fourth, she seemed apathetic or indif-
ferent. She would answer my questions face to face, almost never by
correspondence; she made some suggestions about people to con-
tact, but she was quite reluctant to look at drafts; I suspect that she
never read the completed book – certainly she never commented
on it and I did not ask her. I felt that in an important sense she
did not want to know. For some time she was devastated by Karl’s
death, and later she did not seem to want to dwell on the past. All
this might have counted for little, but for the fact of distance. In
Chicago I put the papers in order and collected material, but my
research also took me to New York, New Haven, Philadelphia, Min-
neapolis, New Mexico, and California. Nearly all of the writing was
done away from Chicago and Coral Gables, first in New Haven in
398 aft er wo rd

1965, later in Northern Ireland in the period 1965–71. During

that time I only saw Soia on brief visits once or twice a year. More-
over, I was under pressure to produce a work of serious scholar-
ship: I had been appointed to a chair in Belfast largely on promise
and the book was to be the means of proving myself.
Accordingly, dealing with Soia turned out to be less of a problem
than I had feared. Insofar as I am perceived as being too loyal a dis-
ciple, one need not blame Soia’s influence.18 There is, however, one
exception to this – the story of the Uniform Commercial Code.19 I
am not a commercial lawyer and have very little business sense – Soia
once told me that I would never understand the credit economy.
She was as anxious as I was to get the UCC chapters right. One day,
after I had asked some questions that showed I was struggling with
the Code records, she shook her head and in effect said: ‘I don’t
see why you are bothering with all those papers; all of the impor-
tant decisions affecting the Code were taken on the phone – I was
at one end of the line, and the person at the other end is DEAD.’20
I knew that the making of the Code had been controversial, both
within the team and in getting it approved and enacted. I was anx-
ious to hear all sides of the stories, but I was regularly frustrated.
Soia was correct in suggesting that the papers were not very infor-
mative about disagreements and that some of the main players were

18
E.g., Manfred Weis, review of KLRM, Archiv für civilistische Praxis , 174, (1974)
90 ff; cp. Colin Tapper “remarkably detached”, (review, 1973 JSPTL (NS) 168–9.
(book review).
19
She also made a significant contribution to the biographical chapter (ch 6).
Here the initiative was mine. I plied her with questions about Karl’s childhood
and family (there was little in the papers) and quirks, and I used her as a sound-
ing board to check that my facts were accurate and my judgements were on the
right track. Towards the end I consulted Ernie Haggard, a psychologist who had
worked closely with both Karl and Soia, as to whether my take on Karl’s person-
ality was plausible. Without any hint of a Freudian interpretation, he made some
helpful suggestions. I did not meet Betty, Llewellyn’s first wife, and had only one
perfunctory interview with his second wife, Emma Corstvet, who understandably
did not give me access to her papers. So I did not get a balanced picture of Karl’s
marital relations – but this did not matter much, because I was not trying to write
a rounded biography. Later Schlegel learned a lot from interviews with Corstvet
(John Henry Schlegel, American Realism and Empirical Social Science (Chapel Hill:
University of North Carolina Press, 1995), index under Corstvet). On Robert
Whitman et al. and the Corstvet papers, see below pp. 427–30.
20
Of course, I cannot recall her exact words, but I am confident about the
punchline.
 a ft e r wo r d 399

dead. Other key figures, such as Bill Schnader, Homer Kripke, and
Walter D. Malcolm, died before I could meet them or were other-
wise unavailable. When I interviewed two others, Grant Gilmore and
Alison Dunham, they seemed very reticent about disagreements. By
1970–1 I had failed to get any detailed material of significance on
the internal disagreements in the Code process, so I made two deci-
sions: first, that I would candidly present the Llewellyn-Mentschikoff
version of events and, second, I would try to stimulate an oral history
project on the making and enactment of the Code whilst memo-
ries were fresh and the survivors still survived. I attempted to make
the first point clear in the footnotes to chapters 9 and 10. With the
help of Professor Robert Summers I tried to stir some interest in the
history and politics of the UCC and in a footnote I urged surviving
participants to record their memories of the project.21 As far as I can
tell, these efforts failed.22 Commercial lawyers showed little interest
in the topic and even to this day I am told there is no adequately
researched general history of the making of the Code.23

The Karl Llewellyn Papers

I arrived in Chicago in April 1963. Karl had died suddenly and

unexpectedly on the night of 13 February 1962. It was term time
and he was due to teach a class the next morning. His death came
as a shock to many. Fourteen months later, when I was given the key
to his office, I was told that no one had been inside it since his death,
not even a cleaner. It was indeed exactly as he had left it, except
that a thin layer of black Chicago grime covered everything on the
desk. If it was like a shrine, I behaved more like a grave robber than
an archeologist or a scene of crime officer. I made no attempt to
leave things in their place until a record was made of their loca-
tion. I did, however, notice that the very top piece of paper (on a
21
KLRM, p. 458, n. 6.
22
See, however, Symposium: Origins and Evolution: Drafters Reflect Upon the Uniform
Commercial Code 43 Ohio State L. Jo. 535 (1982). Also, Homer Kripke, “The
Importance of the Code”, 21 U. Toledo L. Rev. 591 (1990) and “ALI audiovisual
history. No. 2, Homer Kripke” (American Law Institute, 1991).
23
See, however, n.139 below. In my view chapter 9 is incomplete, especially in
respect of internal disagreements, but it can claim to be an authentic, if thin,
account of Soia’s version of events. See further her “Reflections of a Drafter”
(1982), op. cit. above n.15.
400 aft er wo rd

yellow pad) was a handwritten poem in both English and German.24

I rummaged through the papers on the desk and in the drawers
and a filing cabinet, until I found what I was looking for – two or
three drafts of unpublished pieces and some transcripts of lectures
that had been recorded. I took these to Soia, implying that my mis-
sion was accomplished. She pointed out that Karl had a study at
their home, 4920 Kimbark Avenue, and I should also inspect that.
There was more there including some sets of teaching materials.
When I reported that I had finished, she said that she thought
there was also a cupboard with more paper in it. There was. At this
stage, I realized that Soia was leading me on. I responded by mov-
ing in. I planned that when I was alone in the house I would case
the joint from basement to attic. Sure enough the basement held
more boxes, including at least one unopened tea chest indicating
transport by rail from New Haven to New York. Karl had moved
from Yale to Columbia in 1924. I worked my way up through the
house, searching methodically and relatively free from inhibition,
acting like a professional burglar. I found a few more enclaves of
material. As I reached the attic, a door opened and out popped the
head of a little old lady. We were both shocked. She looked afraid.
I did not know that anyone was there, but I realized that this was
probably Soia’s mother. She had arrived from Russia in 1916 and
knew (or claimed to know) no English. I know no Russian. All I
could do was repeat “Szoia, Szoia, Szoia”. She did not shoot me.
I am an archivist manqué. I had no training, but I had been
involved in projects for preserving legal records in both Sudan and
Tanzania. So it did not take much to persuade me to try to put Karl’s
papers in order. The law school financed the project in exchange
for the return of Karl’s office.25 Intermittently over the next two
years (1963–5) I supervised the exercise, assisted by Edmund Kitch
Raymond Ellinwood (former pupils), Dori Dressander (a former
secretary), and my wife, Penelope. We did not consult the univer-
sity librarian or those responsible for archives. They might not have
approved of the idea of the project, let alone our rough and ready
methods. But at least the job got done.
24
I included it in KLP despite Gerhard Casper’s advice that it was embarrassingly
bad and unpublishable. Whitman treats it as significant (see below n.104(iii)).
25
In 1964 I also had grants from the Ford and Rockefeller Foundations to visit
institutions and work-study programs in the United States in connection with my
job in Dar-es-Salaam.
 a ft e r wo r d 401

Rootling through a person’s papers, especially those of an untidy

magpie, is one of the best ways of getting to know them. I learned
more about Karl from this exercise than I did from my direct con-
tact with him in 1957–8, or from interviews, or even from casual
reading of his works. Of course, it was not a substitute for careful
reading, but it was a marvelously illuminating way of getting inside
his mind. This is how I tried to evoke the experience in 1965,
shortly after completion of the project:

‘The amount of material was daunting. Seven large filing cabinets, tightly
packed, have not sufficed to house the collection in its ordered state, even
after the removal of irrelevancies, duplicates, and “such lumber as was not
literary”.26 Originally three or four times as much space had been taken
up. The disorder was magnificent. Little pockets of order, occurring in
periods like geological strata, remained as evidence of the efforts of valiant
secretaries to introduce a system, but more often than not even these had
been subverted by a poltergeist whose capacity for subtle misplacement
amounted at times to genius.
It is impossible to work with the papers without being made acutely
conscious of Llewellyn’s personality, always vivid, sometimes dominat-
ing, easily tempting one from the path of conventional legal scholar-
ship. I confess to having indulged myself so that sometimes my quest
for Llewellyn the jurist has become a quest for Llewellyn the man. In
the early stages this was almost inevitable. The disorder was in itself
revealing and produced juxtapositions that accentuated certain aspects
of his personality. Lying cheek by jowl with an unpublished manuscript
in German or a comment on a section of “the Code” would be a news-
paper clipping about a lecture to a Bar association on its failure to
meet the public’s needs or an unfinished poem or the draft of a letter,
probably never sent, lambasting a well-known jurist about some unwar-
ranted idiocy.
Such juxtapositions give color to one of the more popular images of
Llewellyn: Renaissance man, full-blooded, rumbustious, “universal”, a sort
of Benvenuto Cellini of the law schools. Mercurial of temperament, he
generated anecdotes almost as fast as he generated ideas. There are stories
of heated clashes with his superiors; of a rhapsody over the magnolias in
bloom interfering with the drafting of the Uniform Commercial Code;

26
An allusion to Thomas Carlyle, Sartor Resartus (Everyman edition, 1964),
p. 17.
402 aft er wo rd
of flights of oratory that his audience never forgot. The best known is the
story of his adventures in the German army from which he emerged with
the Iron Cross. Several contradictory versions exist, and the task of piecing
together an authentic account has not been made easier by the fact that
Llewellyn, normally reticent about the episode, gave currency to two ver-
sions – one of which reads like a military romance, the other tending to
the mock heroic.’27

Once enmeshed in the project of dealing with the papers, it

was perhaps inevitable that I should write a book about him. I was
determined that this should be a serious work of scholarship about
his ideas. It was to be an intellectual biography, focusing on par-
ticular works and setting them in the context of his life and intel-
lectual milieu.
The Llewellyn papers project was completed in 1965. I com-
piled a short book on the collection and we prepared a cata-
logue.28 I also completed an article introducing Llewellyn to a
British audience, as I had originally planned.29 My aim was to
arouse interest in his ideas and bury the image of him as a rule-
skeptic who believed “that talk of rules is a myth”.30 My method
was Collingwoodian: identify the author’s concerns in the context
of his place and time; pinpoint the questions arising from these
concerns and summarize the answers he gives and the reasons for
these answers; then assess the implications and applications of
his answers for today’s reader.31 Rather than focusing on the gen-
eral debates about Realism, or The Bramble Bush, or The Common
Law Tradition, I chose instead two books that illustrated what was
involved in a different, more “realistic” approach to studying law
than the current British “blackletter” orthodoxy. Cases and Materi-
als on the Law of Sales illustrated in a very concrete way Llewellyn’s
alternative approach to a mainstream legal subject. The Cheyenne

27
KLP pp. 11–13.
28
W. Twining, The Karl Llewellyn Papers (Chicago: University of Chicago Law School,
1968); R. Ellinwood, Jr. and W. Twining. The Karl Llewellyn Papers: A Guide to the
Collection (Chicago: University of Chicago Press, 1967, revised edition, 1970;
supplemented and updated by Sheri H. Lewis, 1994).
29
William Twining, “Two Works of Karl Llewellyn”, 30 Modern Law Review 514
(1967) and 31 id. 165 (1968).
30
See below pp. 406–7.
31
On R. G. Collingwood see GJB, ch.2.
 a ft e r wo r d 403

Way included the first statement of the law jobs theory, his intro-
duction of the case method to anthropology, and a striking exam-
ple of what later came to be known as “the legal imagination”.
Both books were evidence of Llewellyn’s sophisticated approach
to rules and revealed English treatments of the Realists to be
unscholarly caricatures. The article made almost no impact on
English textbooks on jurisprudence.
This preliminary work set the pattern for other chapters in the
first draft of the book as I conceived it. Over several years, when I
could make time from other commitments, I ploughed through
each of Llewellyn’s other main works, including The Bramble Bush,
the writings on Realism, the Uniform Commercial Code, the com-
mercial law writings, The Common Law Tradition, and the unpub-
lished, incomplete manuscripts of Law in our Society and The Theory
of Rules. It was solid, careful work, as Karl and Soia would have
wanted; it produced accurate introductions to each text. But it was
dull, and I knew it. After one half-hearted attempt to obtain a con-
tract before the book was completed, I turned for advice to Arthur
Leff, a friend at Yale, who sadly died in 1981. He wrote back say-
ing that he had a small reading group at Yale that semester and
he could give it to them to read. So I sent him the manuscript.
Some months later, I received a letter which was fairly polite, but
confirmed that they thought it rather pedestrian. In addition to
a few detailed comments they made two suggestions: first that I
should drop the biographical detail as being irrelevant to a jurist’s
ideas and, second, that I should set Llewellyn’s work in the much
broader political, social, and educational context of the time.32 I
rejected the first piece of advice – I am a committed contextualist.
I accepted the second with alacrity and in a relatively short period –
mainly in a cottage in the Mourne Mountains – I dashed off the
first draft of what are now the first five chapters of KLRM. I was on
top of the material and wrote a coherent narrative mainly from my
head. Several commentators have said that they are the best chap-
ters in the book.33

32
In addition to a joint letter from the group signed by Leff, I met two of the three
students in the group, Duncan Kennedy and Richard Danzig. They were friendly
and polite, but confirmed that it was dull. This was the start of a long, but frag-
mented, friendship with Duncan Kennedy.
33
Others have suggested that as an overall interpretation of American Legal Real-
ism, it puts Karl Llewellyn too much at the centre – he was rather marginal to
404 aft er wo rd

After the criticisms from Leff’s reading group, I added the first
five chapters, tried to enliven the others, but retained and devel-
oped the biographical chapter. In 1971, I delivered the manuscript
to Weidenfeld and Nicolson, with a great sense of relief.34 It was
another eighteen months before it finally appeared in print. The
book was widely reviewed, but – perhaps unfortunately – it did not
stir up much controversy. There were a few criticisms, but nothing
that requires a substantial defense.35

Excursus B: Llewellyn and Hart

By the age of twenty-four I was indebted to two luminaries who

sometimes seemed irreconcilably different. Much of my early theo-
retical work involved attempts to resolve this tension.
At a personal level, Llewellyn was curious about my attachment
to Hart – whom he had heard of but had not read – indeed in
1957 there was not much by Hart to read. He questioned me about
Oxford analytical philosophy and how it differed from the gen-
eral semantics of Korzybski or Hayakawa or the more populist Stu-
art Chase.36 I had no idea. Llewellyn was not enthusiastic about

the groups at Columbia and Yale and my interpretation downplays the concerns
about law as social science. (see Schlegel and Hull, below n.108) My response
is that, first, what I then wrote about Realism was setting a context for a book
on Llewellyn and, more important, part of my argument has consistently been
that as self-appointed spokesman for the Realists he obscured as much as he illu-
minated, not least the diversity of the scholars who were loosely lumped under
that label. Most generalizations about Realism are false or trivial or both, as I
argued in my Dewey lecture in 1984 (see below n.77). However, I fully agree that
Schlegel, Kalman, and others have added a great deal to our understanding of
relations between law and the social sciences in the period 1920–50. (see below
n.101).
34
Weidenfeld’s were publishers of the Law in Context series, of which I was co-
editor. There was a distribution agreement with Oceana, the publisher of The
Bramble Bush.
35
I shall not repeat here responses and mea culpas already published in TAR and
JJM. See further notes 77 and 88 below.
36
Llewellyn owned a copy of Alfred Korzybski’s Science and Sanity (1st edition,
1933, Lancaster, PA: The International Non-Aristotelian Library Publishing Co.)
and some books by Stuart Chase, but how carefully he studied them is unclear.
He may also have been familiar with the work of S. I. Hayakawa. In an inter-
esting review of the translation of Praejuzienrecht und Rechtsprechung in Amerika,
Dennis Patterson has suggested that in his Leipzig lectures of 1929 Llewellyn
 a ft e r wo r d 405

abstract philosophical analysis; if he had known of Oxford’s snob-

bish distain for sociology, he would have disapproved.
When I first met him, Llewellyn rescued me from what was
known as “Korzybskian paralysis” – a state of being stuck in an end-
less regress about the meaning of words, following any answer to
the question: What do you mean by that? by repeating the same
question.37 Karl used the analogy of a craftsman discovering a
new tool – for example, the advent of the adze in Gothic archi-
tecture – and then fixating on it as the only tool and overusing
it. This was an effective way of liberating me from an obsession
and putting “linguistic analysis” in its place as a useful, but limited
technique masquerading as a philosophy. Llewellyn – and more
broadly the law school – also opened my eyes to some deficien-
cies in my English legal education. Three in particular: an almost
exclusive focus on legal doctrine; an overconcern with private law;
and an almost complete divorce from both legal practice (what law-
yers do) and the law in action (how law works). Chicago provided
some key missing ingredients: linking law with the social sciences;
a dialectical approach to every issue; a very intellectualized, but
nevertheless down-to-earth approach to legal practice and the law

“prefigured much of what Wittgenstein would ultimately be credited with having

achieved” (Dennis Patterson “Law’s Practice” 90 Columbia Law Rev. 575 (1990),
at 576), viz the idea that practice rather than rules is the ultimate source of legal
meaning. See also D. Patterson, Law and Truth (New York: Oxford University
Press, 1996). I am not qualified to analyze the affinities or otherwise between
Llewellyn’s view of language with Korzybski, Hayakawa, or the later Wittgenstein.
Patterson’s general interpretation of Llewellyn shares with my own an emphasis
on the significance of “juristic method”. However, his broader argument points
in a direction of postmodern, perhaps Rortyan, epistemology, convincingly crit-
icized by Brian Leiter in Naturalizing Jurisprudence (Oxford: Oxford University
Press, 2007), ch. 5, “Why Quine is not a Postmodernist”. This involves issues
too complex to pursue here; suffice to say that there is scope for a thorough
philosophical exploration of Llewellyn’s views on language and his epistemol-
ogy, which in the past I have associated with Deweyian (as opposed to Rortyan)
pragmatism (see GJB, pp. 131–2, n. 126).
37
KLP, p. 6. I have recently found a paper I wrote for Llewellyn’s jurisprudence
course that has on the front the following comment by KNL: ‘I think it was very
good for you to do this. I don’t know exactly why I think so. There is a feeling
that you have been under some kind of intellectual pressure, maybe because a
confident framework proved to be a horse that wouldn’t run. This is a shock. A
good man, however, bubbles. I take this as bubbling. The only thing it has, for
anybody except you, is life’. This fairly typical comment ends with an equally
typical note of encouragement.
406 aft er wo rd

in action; a demonstration of the interdependence of theory and

practice; and a concern for justice.
As the account of my early encounters with the realities of qualify-
ing for the bar and personal injuries practice show, I sensed that there
were some gaps in my legal education. In 1957–8 Chicago helped me
to identify and to start to fill these gaps. In addition, when I read The
Cheyenne Way and learned about the law jobs theory, it fitted well with
my earlier readings in legal anthropology and African law (Gluck-
man, Fallers, Bohannan, Elias, Gulliver) and my own impressions of
law in East Africa. So it is hardly surprising that I was “converted” to
Llewellyn and some aspects of the American law school.
Hart was a relatively new phenomenon in 1957–8 (The Concept of Law
was published in 1961) and Llewellyn was not very interested. Hart,
on the other hand, was quite genuinely puzzled by my enthusiasm for
Llewellyn. He gave me the impression that I had suffered a lapse of
judgement and of taste and, although he did not say so, implied that
I was being disloyal. In The Karl Llewellyn Papers I made a good deal of
play with Llewellyn’s enthusiasm for Thomas Carlyle and his use as a
pseudonym Carlyle’s mythical figure Diogenes Jonathan Swift Teufels-
drockh, the Philosopher of the Clothes.38 I sent Hart a copy of the
book. He responded with a friendly postcard which reads:

17/7/68
Thank you very much for the K.L. papers. Many congratulations on your
account of him. Excellent and most sympathy-provoking. The analogy with
Carlyle always has struck me as very strong (Needless to say I dislike Carlyle
(most of all what he stood for) while recognizing his genius. Yours HLAH
‘The sound and the thunder of the Odyssey’.39

So far as I can tell, Hart had not read far beyond The Bramble
Bush before he published The Concept of Law. He has been rightly
criticized for attributing to Llewellyn the view “That talk of rules

38
See KLP, pp. 11–12, 17–18; see further KLRM, pp. 120, 421. I interpreted
Llewellyn’s Teufelsdrokh papers as at best “semi-serious”. Natalie Hull treats
them as more significant. See especially “The Romantic Realist: Art, Literature
and the Enduring Legacy of Karl Llewellyn’s ‘Jurisprudence’”, 40 The American
Jo. of Legal History 115 (1996).
39
A reference to Andrew Lang’s As One Who for a Weary Space has Lain – in fact it is
the “surge and thunder”, but the sense is clear enough.
 a ft e r wo r d 407
40
is a myth”. He did once in conversation grudgingly acknowledge
that Llewellyn’s account of the law jobs was “a useful categoriza-
tion” – perhaps meaning that it was a helpful, but secondary, way
of classifying the functions of law. Later Hart acknowledged that
he had erred in accusing Llewellyn of being a “rule skeptic”, as he
interpreted it, but he still used the idea of rule skepticism as a point
of reference.41
The fact is that neither of my teachers had read the other or
was much interested. And at first sight they were very far apart in
style, in provenance, and in disciplinary expertise: Hart, an Oxford
philosopher, had had a busy Chancery practice for seven years and
disliked it.42 Llewellyn had loved his shorter period of commercial
practice; his nonlegal background was in ethnography, sociology,
and to a lesser extent economics. Hart’s main interest was elucida-
tion of concepts, Llewellyn’s how law works in practice.
I did not think that I was being disloyal to Hart. In particular, I
continued to admire and use his methods of conceptual elucida-
tion – but no longer so obsessively. I was attracted by his modified
utilitarianism and his John Stuart Mill liberalism as exemplified by
his writings on prostitution, homosexuality, and punishment. Per-
haps more important, I stayed with Hart’s positivist position, which
was much more robust than Llewellyn’s.43 Critics of positivism miss
the mark when they attribute a belief that “might is right” or an

40
See next note.
41
H. L. A. Hart, The Concept of Law (1961) at pp. 132–7 (citing the famous passage
in The Bramble Bush about rules as “pretty playthings” that Llewellyn had already
retracted). Hart later half-retracted this attribution to Llewellyn in “American
Jurisprudence Through English eyes: The Nightmare and the Noble Dream”
(1977, reprinted in Essays in Jurisprudence and Philosophy (1983), ch.4 at p. 128)
in which he interprets some of Llewellyn’s ideas a bit more sympathetically (cit-
ing Jurisprudence: Realism in Theory and Practice and The Common Law Tradition)
while complaining of his obscurity (at p. 137). There Hart interprets Llewellyn
as a moderate subscriber to “the Noble Dream” view of adjudication. Hart’s criti-
cism of the view that “talk of rules is a myth” is quite cogent; the difficulty is find-
ing anyone who subscribed to it. This is not to say that there is a consensus on
the answer to the question: Under what conditions is it true to say that a rule
exists? on which see Twining and Miers (2010), op. cit., at pp. 102–7.
42
Lacey, op. cit., at pp. 47–8, 112–13.
43
In respect of Llewellyn I agree with Leiter’s view that Realism, which is not a
theory of law, typically presupposes a version of Legal Positivism. (Leiter (2007,
op. cit., at pp. 55–7, 104–6).
408 aft er wo rd

indifference to justice and morality or a kind of scientistic attach-

ment to brute fact to legal positivists like Bentham and Hart. Ben-
tham distinguished the is and the ought for the sake of the ought;
although in The Concept of Law Hart claimed to be advancing a
descriptive theory of law – and so was more concerned with the is –
he was also quite clear that he considered that distinguishing is and
ought was necessary for clarity of thought in evaluating, criticizing,
and reforming law – and he was quite active in public debate on
such issues. His positivism was moral rather than amoral.44
Perhaps more significant in this context is a matter of attitude or
affect. I was quite surprised by Llewellyn’s claims that he loved the
common law, by his pride in being a good lawyer, and his fascination
in details of how things work (craft, technique, technology).45 I had
from early on taken an instinctive dislike to the culture of the Inns
of Court and I sensed that Hart was at best ambivalent about his life
at the Bar. The ideas of loving the law and being proud of being a
lawyer were new to me. Although I learned to share Llewellyn’s fas-
cination with the crafts of law – for example, his nuanced differen-
tiation of sixty-four different precedent techniques46 – I have stayed
with something like Hart’s tough positivism: there is nothing inher-
ently good or attractive or lovable about positive law from an exter-
nal point of view. The scholar needs to look on power and authority
with relative detachment: law is very often a product of other peo-
ple’s power – whether it is in a foreign legal system or an ancient
one or, for the most part, in one’s own country or society or broader
milieu, such as Europe.47 Of course, if one is participating in a par-
ticular legal system that one feels to be legitimate it may often be

44
See Neil MacCormick, “A Moralistic Case for A-Moralistic Law” 20 Valparaiso L.
Rev. 1–41 (1985).
45
His collaborator, Hoebel, was regularly impressed by Llewellyn’s skills of analysis:
‘In awe one day [I] queried, “Karl, how do you do it?” “Why, Ad”, he replied, with
more pride in his profession than in himself, “I am a case-trained lawyer – and
what is more, I am one of the three best in the country”.’ (E. Adamson Hoebel,
‘Karl Llewellyn: Anthropological Jurisprude’, 18 Rutgers L. Rev. 735–44 (1964)
at p. 743).
46
KLRM, pp. 237–9.
47
W. Twining, “Other People’s Power: The Bad Man and Legal Positivism 1897–
1997” 63 Brooklyn 189 (1997) (reprinted in GLT, ch. 5) and “Institutions of
Law from a Global Perspective: Standpoint, Pluralism and Non-state Law”, in
M. Del Mar and Z. Bankowski (eds.) Law as Institutional Normative Order (Farn-
ham: Ashgate, 2009), ch. 2.
 a ft e r wo r d 409

appropriate, sometimes even obligatory, to try to help it to become

“the best it can be”; but that is one kind of participant standpoint,
not that of a scholar whose main concern is understanding the phe-
nomenon. Hart captures this attitude well when he says:
[T]he identification of the central meaning of law with what is morally
legitimate, because orientated towards the common good, seems to me in
view of the hideous record of the evil use of law for oppression to be an
unbalanced perspective, and as great a distortion as the opposite Marxist
identification of the central case of law with the pursuit of interests of the
dominant class.48

Concepts are thinking tools. For clarity of thought one needs

tools for description as well as tools for evaluation, critique, and
advocacy. So maybe for me Hart and Llewellyn mainly comple-
mented each other, Hart providing methods of conceptual elucida-
tion, a model for describing and analyzing modern municipal legal
systems with relative detachment, and an exemplar of English-style
democratic liberalism. Hart tells us what (state) law is; Llewellyn
provides a lens on what law (more broadly conceived) does, and a
way of conceiving of nonstate law, legal pluralism, and the how of
the actual operations of laws, lawyers, and legal orders.
On this interpretation they are different, without disagreeing. To
the extent that they focused on different questions that is plausi-
ble. But their concerns overlapped, and at first sight they provide
dissimilar perspectives on similar, if not identical, questions. So we
will need to look more closely at where they may be difficult to rec-
oncile. This, I believe, is one reason why Llewellyn’s vision of law
is of continuing significance – a matter to which I shall return at
the end.49

Part B KLRM 1971–2011

KLRM was completed in 1971. It is a product of its time and it
would be foolish to try to update the text. Even extensive anno-
tations would distract attention from Llewellyn’s own writings, to
which this book is intended as a guide. Here I shall merely try to
plug a few gaps in KLRM, comment selectively on developments rel-
evant to considering Llewellyn today, and provide some signposts
48
Hart (1983) op. cit., at p. 12.
49
See below pp. 441–3. On other attempts to reconcile analytical and empirically-
oriented perspectives in jurisprudence, see GJP, pp. 54–60.
410 aft er wo rd

towards significant recent literature. This section deals briefly with

(a) writings by Llewellyn published since 1971; (b) writings about
Llewellyn and Realism generally; (c) developments in jurispru-
dence since 1971; (d) developments relating to the UCC and com-
mercial law generally; and (e) unfinished agenda.

(a) Llewellyn’s works made accessible

Three books by Llewellyn have been published since 1973: Rechts,
Rechtsleben und Gessellschaft (1977);50 a translation of the main text
of Praejudizienrecht und Rechtsprechung in Amerika (1933) as The Case
Law System in America (1989);51 and The Theory of Rules (2011).52 In
addition there has been a reissue of The Bramble Bush.53 All of these
have been well edited, with helpful introductions. I had access to
the originals before I wrote KLRM, but their publication makes
some of Llewellyn’s most important works available and is evidence
of a continuing interest in him in the United States.54

50
Rechts, Rechtsleben und Gessellschaft, edited and introduced by Manfred Rehbinder
(Berlin: Duncker und Humblot, 1977). Useful discussions of Llewellyn’s Ger-
man works include Michael Ansaldi, “The German Llewellyn”, 58 Brooklyn L.
Rev. 705 (1992) and James Q Whitman, “Commercial Law and the American
Volk: A Note on Llewellyn’s German Sources for the Uniform Commercial
Code”, 97 Yale L. Jo. 156 (1987). See also Dennis Paterson (1990) on the sig-
nificance of Praejudizienrecht, discussed above n.36.
51
The Case Law System in America, edited with an introduction by Paul Gewirtz,
translated by Michael Ansaldi (Chicago: University of Chicago Press, 1989).
52
Karl Llewellyn, The Theory of Rules (edited and introduced by Frederick Schauer)
(Chicago: University of Chicago Press, 2011).
53
Karl Llewellyn, The Bramble Bush, with an introduction and notes by Sam
Sheppard (New York: Oxford University Press, 2008).
54
A great deal of primary material relating to the drafting and enactment of
the UCC has also been published, a number of Llewellyn’s articles have been
anthologized, and an unpublished manuscript entitled “A Required Course
in Jurisprudence” was included in W. Twining (ed.) Legal Theory and Common
Law 1986 Oxford: Blackwell, ch. 14 (a longer version of this was printed in
Llewellyn’s Jurisprudence: Realism in Theory and Practice (Chicago: University of
Chicago Press, 1962). On Robert Whitman’s (and his co-authors’) use of the
Emma Corstvet papers, see below pp. 427–30. Francis J. Mootz, Jr. (ed.) On Phi-
losophy in American Law (New York: Cambridge University Press, 2009) reprints
Llewellyn’s 1934 paper of that title and uses it as a jumping-off point for over
thirty short essays on “the role that philosophy might play at this juncture in
the history of American legal thought”. The essays are varied and variable in
quality, but taken together they provide an interesting commentary on some,
 a ft e r wo r d 411

Of the remaining unpublished works by Llewellyn, the unfin-

ished text of Law in Our Society is clearly the most important. I shall
deal with that in the last section. One other work deserves com-
ment here: Soia Mentschikoff and Irwin Stotzky, The Theory and
Craft of American Law – Elements.55 This and cognate works build
on Llewellyn’s Elements course in Chicago, the full significance
of which I did not realize when I wrote KLRM. So this deserves
another Excursus.

Excursus C “Elements”

He that hath a Gospel

For all earth to own –
Though he etch it on the steel
Or carve it on the stone –
Not to be misdoubted
Through the after-days
It is his Disciple
Shall read it many ways.56

I did not take Llewellyn’s course on “Elements”. If I had done so,

I might have been less critical of The Common Law Tradition, for
I would have seen more clearly the point of studying a sequence
of cases from a single jurisdiction, to trace not only the develop-
ment of a single thread of doctrine case by case, but also to view
the court as “a working institution”, its style(s) of reasoning, and
the operation of contextual factors. In KLRM, I wrote: ‘Although
there were a number of Llewellynesque features, in many respects
“Elements” resembled other “legal method” courses, and it lacked
the unique qualities of The Bramble Bush.’57 In retrospect, this does
an injustice to the course and the materials, both in terms of its
conception and its influence.

but by no means all, aspects of contemporary American legal theory. They also
include a number of comments on and interpretations of Llewellyn that claim
to be “fresh looks”.
55
S. Mentschikoff and I. Stotzky, The Theory and Craft of American Law – Elements
(New York: M. Bender, 1981).
56
“The Disciple”, Rudyard Kipling’s Verse, 1885-1926 (definitive edition) (London:
Hodder and Stoughton, 1940), at p. 774.
57
KLRM, p. 151.
412 aft er wo rd

Dennis Hutchinson has written an interesting history of the

course, which was begun by Edward Levi and Roscoe Steffen in
Chicago in 1937.58 Levi handed it over to Llewellyn when he joined
the Chicago faculty in 1951. Llewellyn produced a set of materials
that, in Hutchinson’s words, “could not have been more different
from the Levi-Steffen approach”.59 Llewellyn continued to require
students to read Levi’s short classic, An Introduction to Legal Reason-
ing, but he dropped all of the philosophical texts and substituted
his own materials, mainly sequences of cases from New York. Both
Levi and Llewellyn were concerned to teach case law reasoning, but
Levi emphasized conceptual development and relied quite heavily
on secondary materials; Llewellyn focused on intensive reading of
judicial opinions in full, unadorned by any notes or other extrane-
ous material.60
At Chicago from 1951 until Soia Mentschikoff moved to Miami,
“Elements” was taught almost exclusively by Llewellyn himself or
jointly with Mentschikoff and, after his death by Mentschikoff
alone. The course is still taught under the deliberately open-ended
rubric of “Elements” in at least three law schools – Chicago, Miami,
and Cardozo.61 For a number of years, the Llewellyn tradition was
carried on by former students who had taken one of the three
Chicago versions.62 Generally, these teachers stuck very closely
58
Dennis J. Hutchinson, “Elements of the Law”, 70 The University of Chicago Law
Review 141 (2003).
59
Ibid. at p. 152.
60
Llewellyn did assign some outside reading, but deliberately did not supplement
the cases. An inventory of the various editions of “Elements” materials can be
found in the Guide to the Karl Llewellyn Papers at pp. 73–4 and the 1994 supple-
ment.
61
Up to 1962 “Elements” was taught in Chicago by Llewellyn, sometimes with
Mentschikoff, who continued to teach it after his death until she moved to
Miami. When she became dean she made “Elements” the foundation course at
the University of Miami Law School. In the early days it was taught exclusively
by graduates of the University of Chicago who had been taught by Llewellyn or
Mentschikoff or both. It has survived, though not without controversy.
62
For example, until quite recently the main teachers in Miami were Terry
Anderson, who took Llewellyn’s course; Alan Swan, who had Llewellyn and
Mentschikoff; and John Gaubatz and Irwin Stotzky, who had Mentschikoff alone.
In 2010–11 Anderson and Stotzky were still teaching “Elements” at Miami. In
the 1980s I participated in teaching “Elements” in some years, usually co-teach-
ing with Anderson, but I had not taken the Chicago course, and deviated some-
what in conception and method. Leslie Gerwin, who (along with Paul Shupak,
 a ft e r wo r d 413

to the Llewellyn-Mentschikoff conception of the course, though

sometimes substituting different sequences of cases and using dif-
ferent classroom methods. However, as the Llewellyn-Mentschikoff
alumni were replaced, the course naturally changed in conception
and scope as well as methods. Even in Miami some versions of “Ele-
ments” now owe little or nothing to Llewellyn.63
Three questions arise: What was Llewellyn’s conception of the
course? What was distinctive about it? Is something of value being
lost as it fades away? Here, I can only give brief answers to these
questions.
Llewellyn saw “Elements” as one crucial part of a liberal legal
education.64 Law as a liberal art has three basic components: (i)
basic technical competence; (ii) a clear vision of the ethos and
meaning of legal practice and of the role of law in society and in
the world as a whole; and (iii) the spiritual or aspirational aspect of
life in the law – including the quest for “the Good, the True and the
Beautiful in Law”.65 Llewellyn’s version of “Elements” focused pri-
marily on (i) and aspects of (ii), without greatly emphasizing it, and
hinted at (iii) largely through osmosis.66 As an introductory course
another Chicago graduate) introduced the course at Cardozo, had been taught
by both Anderson and Mentschikoff at Antioch Law School, but that is another
story (see below n.70).
63
It seems highly likely that the original title “Elements of Law” was deliberately
open-ended to give individual teachers a wide discretion about objectives, meth-
ods, and scope. There are many ways of introducing students to the discipline of
law. (KLRM, p. 141). Some of the differences within the Llewellyn-Mentschikoff
tradition can be seen by comparing the Mentschikoff-Stotzky book with Eva H.
Hanks, Michael E. Herz, and Steven S. Nemerson, Elements of Law (Cincinnati:
Anderson Publishing, 2004), a book that emerged out of the Cardozo course.
64
K. N. Llewellyn, “The Study of Law as a Liberal Art”, Address at the Dedicatory
Celebrations, University of Chicago Law School, April 30, 1960, reprinted in
Llewellyn, Jurisprudence (1962) op. cit., as ch. 17. Extracts are included in Ments-
chikoff and Stotzky, op. cit., at pp. 272–92. The quoted passage is at p. 276.
65
Llewellyn, “On the Good, the True and the Beautiful in Law” 9 University of
Chicago L. Rev. 224 (1942) reprinted (in part) in Jurisprudence (1962) op. cit.,
ch. 8. See KLRM, pp 197–9.
66
This is Terry Anderson’s interpretation. The 1951 edition of The Bramble Bush cap-
tures some of components (ii) and (iii). The course description for Anderson’s
course in Miami, which he claims is the closest to the original Llewellyn version,
reads: ‘Elements introduces students to the theory and craft of the common law.
It is a skills course in which the materials studied are simply exercise materials for
the developments of three skills: (1) how to read and analyze appellate decisions
with the skill necessary to use them in constructing persuasive arguments and in
414 aft er wo rd

it could do no more than lay a foundation. Llewellyn believed that

a sound liberal legal education involved a range of skills, but “Ele-
ments” was focused very largely on one skill set, reading and using
reported cases.67 Reading included fast and slow reading, reading
single cases and sequences from a single court, looking at what
judges were doing as well as what they were saying, how they were
reasoning in a specific institutional setting, not only justifying their
individual decisions, but also persuading their brethren to move in
the same direction. For example, the sequence of indefiniteness
cases from New York68 were used to show, inter alia, how a great
Grand Style judge (Cardozo) can lead a court to make a significant
development in legal doctrine while working within the constraints
imposed by the institution and tradition.69
“Elements” has been taught for over seventy years, mainly in
three law schools, sometimes more. It is one of the most tangi-
ble markers of Llewellyn’s influence. Naturally, different teachers
have interpreted it differently, in respect of objectives, methods,
and materials – sometimes merely substituting different materials,
sometimes doing radically different things. In some instances, little
more than the name survives. Those who follow in the Llewellyn
tradition of “Elements” read his ideas in many ways.

counseling clients how to take advantage (or avoid the adverse consequences of)
the law as established through the date of the particular case; (2) how to read a
sequence of cases from a single jurisdiction to see the roles that the lawyers and
judges played in applying and developing the law; and (3) how to develop persua-
sive arguments using a sequence of cases that a lawyer could use to persuade the
court to decide a hypothetical case in favor of her client. The intensive in-class
discussions and exercises are supplemented by a series of extensive readings that
introduce students to the writings of legal theorists during the periods in which
the cases arose. The course concludes with a final examination.’ Compare the
Mentschikoff-Stotzky longer formulation in The Theory and Craft of American Law:
Elements, op. cit., introductory note (pp. xv–xxxv).
67
Llewellyn considered that reading and using statutory material was also impor-
tant, but he did not place much emphasis on this in “Elements”, perhaps because
he felt that these skills should be developed in other courses and that some of
the basic case law skills of reading and reasoning were transferable to statutes.
68
Included in Mentschikoff and Stotzky, op. cit., at pp. 297–554.
69
Interestingly, in this course Llewellyn did not set exercises in constructing legal
arguments or applying case law skills, whereas some of his former students have
done so. For example, Anderson and Gaubatz have regularly used exercises as
a preparation for mooting and appellate argument. In some years Llewellyn
taught appellate advocacy/legal argument as an upper-level skills course.
 a ft e r wo r d 415

Three books on legal method by acknowledged disciples illus-

trate some of the variations. Soia Mentschikoff and Irwin Stotzky’s
The Theory and Craft of American Law (1981) is based closely on
Llewellyn’s “Elements” materials. It includes the sequences of cases,
nearly all from New York, that Llewellyn used, but adds questions
and annotations that include many references to doctrinal devel-
opments in the law. Llewellyn’s The Bramble Bush and Levi’s Intro-
duction to Legal Reasoning (but significant, not The Cheyenne Way),
are prescribed as supplementary reading, together with six essays
that “add background and theory to the case materials” (xix). The
introduction deals cursorily with the functions of law and “mecha-
nisms that precede court intervention”, meaning negotiated settle-
ment, mediation, arbitration, administrative decision making, and
legislation. But the focus is relentlessly on upper court litigation
dealing with questions of law in relation to techniques of judging
and advocacy in handling cases and to a lesser extent legislation.
The introduction of the book contains a more elaborate introduc-
tion to the basic skill of briefing a case than Llewellyn may have
done, but the meat of the book consists of very detailed study of the
craft of judging and appellate advocacy in the American common
law tradition.70
Kelso’s A Programmed Introduction to the Study of Law: Part I Case
Skills attempted to transform Llewellyn’s ideas on the subject into a
self-instructional programmed learning text.71 This is mainly inter-
esting as an early attempt at introducing programmed learning
into law. The medium inevitably involved a rather formalized inter-
pretation of Llewellyn’s ideas.

70
In a thoughtful review of The Theory and Craft of American Law (33 Jo. Legal Edu-
cation 64 [1983]) Leslie Gerwin and Paul Shupak, professors at Cardozo, com-
pare Llewellyn’s original materials, this book, and other American books on legal
method at the time. They acknowledge that Mentschikoff and Stotzky are largely
true to Llewellyn, not least in their emphasis on skills, and crafts, and courts as
working institutions, but criticize them for adding supplementary materials that
may divert students onto focusing on substantive law rather than skills, on rules
rather than legal crafts. They interestingly point out that most introductions to
legal method aim to teach the skills of a law student, whereas Llewellyn and Ments-
chikoff consistently focus on how leading lawyers and judges actually handle cases.
71
Charles D. Kelso, A Programmed Introduction to the Study of Law: Part I Case Skills
(Indianapolis: Bobbs-Merrill, 1965), reviewed in Katherine O’Donovan, William
Twining and Rex Mitchell, “Legal Eagles or Battery Hens?” 10 Jo. Soc. Public
Teachers Law (NS) (1968) 6.
416 aft er wo rd

William Twining and David Miers, How To Do Things with Rules72

might be interpreted as an application and extension of the ideas
of Llewellyn, Hart, and others in a mainly British context. The
educational conception is quite different from the original “Ele-
ments” course in that there is a greater emphasis on theory, the
skills involved centre on rule handling in general, not just in legal
contexts, and in the later editions on skills of systematic and self-
conscious reading and using a much wider range of kinds of texts
as materials of law study. It also devotes much more attention to leg-
islation. Llewellyn’s direct influence can be found in the treatment
of rule handling in the context of the law-jobs theory, and in some
particular ideas such as precedent techniques, Grand Style judging,
and the ABCs of appellate advocacy. More important, the central
thesis of the book is that problems that give rise to the interpreta-
tion and use of legal rules and other “law stuff” are by no means
unique to legal contexts and that law is au fond a very human affair
and the study of law can itself be a liberal art. In short, the book is
influenced by Llewellyn’s ideas, but not by his “Elements” course.
Other courses on legal method claim to teach basic case law skills.
Many do not live up to this claim, but some do. So, apart from the
emphasis on sequences of cases from a single court, and some of
Llewellyn’s ideas, what was distinctive about Llewellyn’s version of
“Elements”? Of course, when Llewellyn or Menschikoff were teach-
ing the course, it was special because of the teachers. But, in the
hands of their disciples, however loyal, I would say: beyond that,
not much. The main claim relates to the intensity of the focus on
reading a small number of cases. In short, depth is given priority
over coverage. This is admirable, but how far it is unique is difficult
to say.
Is there something in Llewellyn’s original conception of “Ele-
ments” worth preserving or rescuing? In KRLM I argued that The
Bramble Bush has survived and been influential not because its mes-
sage was radical or iconoclastic, but rather because it expressed in
a unique style the central ethos of the American law school.73 I still

72
William Twining and David Miers, How To Do Things With Rules: A Primer of Interpre-
tation (London: Weidenfeld and Nicolson, 1973; 5th edition, 2010, Cambridge:
Cambridge University Press).
73
See KLRM, pp. 140–52, esp. p. 143. Cf. William C. Jones, review of The Theory
and Craft of American Law, 37 U. Miami L. Rev. 867 (1983).
 a ft e r wo r d 417

think that this is right, although I would today express this view dif-
ferently. Of course, American law schools and their environment
have changed in many ways since 1930, but there has also been con-
siderable continuity in the basic ethos and the underlying tensions
between liberal and vocational objectives that concerned Llewellyn.
For a long time I have felt uneasy about some aspects of Ameri-
can law school culture in its various manifestations and some of that
is reflected in unease about the Llewellyn-Mentschikoff conception
of “Elements”, which after all is based on a particular vision of legal
education. The fault does not lie in Llewellyn’s brave attempt to
reconcile liberal and vocational objectives, knowledge, skills, and
ideals (know what, know how, know why), and to bridge theory and
practice. On that I am still a quite loyal disciple. But pedagogically
I am worried that three sets of ideas get conflated and make the
“Elements” plus Bramble Bush approach too conservative. In short,
there are important differences between learning about Hercu-
les, trying to emulate him, and mastering basic intellectual skills
needed by a beginning law student.74
This is too complex a matter to pursue in depth here.75 The basic
point is this: Llewellyn’s main concern in teaching first year students
was first, to counter the expectation that legal education consists
solely in learning doctrine and, second, to provide an alternative
to the Langdell case method, which was too narrow both in respect
of the range of skills inculcated and in respect of perspective –
“the wherewithal for vision was not given”.76 Llewellyn is generally
judged to have been largely successful in respect of communicat-
ing the central realist message viz. that for most purposes the study
of rules alone is not enough. But “Elements” did not mark a sharp
break from Langdell in respect of the materials to be studied, the
skills to be developed, and the goal of setting a broad context and
framework for an undergraduate legal education. Furthermore,
his fascination with the workings of appellate courts in action con-
flated studying about (knowledge/understanding) and studying

74
See LiC passim. On the distinction between professional skills and the basic
skills needed by a first year law student, see Gerwin and Shupak, above n.70.
75
I intend to develop this argument elsewhere. Some indications can be found in
“Reading Law” (Seegers Lectures), 24 Valparaiso L. Rev. 1 (1989) and “Taking
Facts Seriously” (34. Jo. Leg. Ed 22 [1989]), both of which are reproduced in
LiC (1997).
76
Jurisprudence, op. cit, pp. 375, 377.
418 aft er wo rd

how (skills) in a way, which in my experience has left some teachers

and many students unclear about the main learning objectives of
the course.

(b) Writings about Llewellyn and Realism since 1971

(i) Two supplements to KLRM In 1985 Weidenfeld and Nicolson

and Oklahoma University Press agreed to reissue KLRM. I decid-
ed not to revise the text for reasons stated in the postscript. Since
then, rather than revise it, I have supplemented it with two substan-
tial essays.77 As both are easily accessible and rather long, they have
not been appended to this edition.
Timed to coincide with the reissue of KLRM, I devoted the 1984
Dewey Lecture at NYU Law School to “Talk About Realism”. In the
period between 1971 and 1984 there had been an explosion of
interest in jurisprudence and modern legal history. I summed up
the major developments as follows:
[In 1971] Jurisprudence in the United States was muted, and, at least in
England, Realism was thought to be discredited. Neither Marxism nor eco-
nomic analysis of law had many adherents in law schools in either country.
Terms such as ‘critical legal studies’, ‘sociolegal’, ‘contextual’, ‘structur-
alism’ and ‘phenomenology’ have all gained currency in the law school
world since then. The same period has seen major contributions to Legal
Theory, broadly conceived, from Dworkin, Finnis, Fuller, MacCormick,
Nozick, Rawls, Raz, Summers, Unger and many others. It has been a par-
ticularly rich period in the history and theory of contracts. Legal history
has blossomed and diversified, and there have been interesting develop-
ments in legal anthropology. Particularly pleasing has been the revival of
a contextual approach to the history of political thought by Skinner and
others. The effect of these and other developments is to create a different
intellectual climate for interpreting and assessing the continuing signifi-
cance of the Realist legacy.78

77
W. Twining, “Talk about Realism” 60 NYU L. Rev. 329 (1985) reprinted in GJB,
ch. 5 (hereafter TAR) and W. Twining, “Karl Llewellyn’s Unfinished agenda: Law
in Society and he Job of Juristic Method” (1993) (hereafter JJM) first published
in Chicago Papers in Legal History; reprinted in GJB, ch. 6. Shorter versions were
published in 48 U of Miami Law Review 119–58 (1993) and U. Drobnig and
M. Rehbinder (eds.) Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht:
Karl N. Llewellyn und seine Bedeutung heute (Berlin, Dunker and Humblot, 1994),
pp 71–112.
78
TAR at pp. 332/96.
 a ft e r wo r d 419

“Talk About Realism” focused on some of the implications of

these developments for understanding R/realism. Distinguishing
between historical accounts of the American Realist Movement
and elucidation of realism as a juristic concept, I welcomed the
increased interest in legal biography and the detailed historical
work by Schlegel and others that had begun to emerge,79 but I was
sharply critical of loose generalizations about “Realism” and “the
Realists”, whom I continued to interpret as a variegated bunch of
scholars and thinkers. These generalizations not only distorted
history, but also tended to marginalize the most original ideas
of individuals – for example, Frank on fact finding, Llewellyn
on the law jobs, Moore’s conception of “science”, and Willard
Hurst’s historiography. In particular, I criticized five tendencies:
to treat Realism as a full-blown theory of law; to assume that Real-
ism was mainly or entirely about adjudication – sometimes even
only appellate adjudication of questions of law; the claim that the
Realists had been essentially negative or nihilistic; the implica-
tion that they had contributed nothing constructive or original;
and suggestions that most Realist writings were politically or ideo-
logically motivated, linked closely to the progressive movement
and the New Deal (some were; others, including Llewellyn’s, were
not). I concluded that most historical generalizations about the
Realists were false or trivial or both. Furthermore, there was a ten-
dency to criticize Realism or individual Realists for their alleged
answers to questions remote from their concerns. My criticisms
mainly restated and extended points I had made more mutedly
in KLRM.
The concept of “realism” remains elusive – after all, what is real-
ity? In “Talk About Realism” I extended my analysis in relation
to Llewellyn’s use of the term and to the development of “law in
context” and “socio-legal studies” in the United Kingdom.80 This

79
See below n.101.
80
Since 2004 a new Legal Realist movement has emerged, spearheaded by Stew-
art Macaulay and colleagues at Wisconsin and the American Bar Foundation.
It acknowledges the ancestry of old American Legal Realism, but claims to be
less court-centred and to place more emphasis on a rigorous approach to the
methodological problems of interdisciplinarity and on bottom-up perspectives
and the role of law in the lives of ordinary people and other norm users. This is
a welcome development. One hopes that the label will not attract futile contro-
versy about its meaning and scope.
420 aft er wo rd

underlined the question-begging tendency of the concept, and I

concluded that it should not be used to bear much weight.81
“Talk About Realism” can be read as an update and gloss on
KLRM twelve years after its first publication. My second supple-
mentary essay was rather different. In 1993, the centenary of
Llewellyn’s birth was celebrated in Leipzig and Chicago in strik-
ingly different ways. “Karl Llewellyn’s Unfinished Agenda: Law in
Society and the Job of Juristic Method” was delivered in different
versions to the two audiences.82 The seminar in Leipzig, four years
after the fall of the Berlin Wall, resulted in a useful scholarly col-
lection that focused mainly on Llewellyn’s sociology of law and the
UCC. It showed that interest in his work was still alive in Germa-
ny.83 The event in Chicago was sparsely attended and, I believe,
my paper was the only publication resulting from it. In Chicago,
it appeared that Llewellyn had been sidelined, perhaps because of
the rise of economic analysis of law.84
The main function of my 1993 lecture was to assess Llewellyn’s
continuing significance a century after his birth, slightly more than
thirty years after his death, and twenty years after the first publica-
tion of KLRM. Re-reading this assessment a further twenty years
on, my overall judgement has not changed much. I also took the
opportunity to say some more about the law-jobs theory and the
course materials on Law in Our Society. This deserves a brief com-
ment.
The lengthy discussion of “the job of juristic method” was in
part stimulated by a puzzle: there seems to be a lacuna between

81
“Talk about Realism” (TAR) includes extensive comments on a number of top-
ics, which I shall not discuss here: (i) the relationship between American Legal
Realism and critical legal studies (especially notes 21, 87); see now Wouter de
Been, Legal Realism Regained: Saving Realism from Critical Acclaim (Stanford: Stan-
ford University Press, 2008) (ii) Bruce Ackerman on “Legal Constructivism”
(n. 55); (iii) Llewellyn’s attitude to John Dewey (n. 126; see now Paul Maharg
(2007), op. cit., below n.101, on the relations between Dewey and the Colum-
bia Law School in the 1920s); (iv) the relationship between realism and (a)
“law in context” and (b) socio-legal studies in Britain (at pp. 136–44); (v) fur-
ther thoughts on the concepts of “realism”, “common sense”, and “horse sense”
(notes 129 and 30).
82
JJM, op. cit., n.77. See also Twining, “The Law in Context Movement” (2008), op.
cit., n.100 below.
83
Drobnig and Rehbinder (eds.) (1994), op. cit., n.101.
84
See below pp. 434–5.
 a ft e r wo r d 421

Llewellyn’s treatment of American appellate adjudication, espe-

cially in state courts, as developed in The Common Law Tradition,
and his law-jobs theory, as outlined in The Cheyenne Way and devel-
oped in several articles, especially “The Normative, the Legal and
the Law-Jobs: The Problem of Juristic Method”.85 In KLRM I had
criticized Llewellyn for not setting his particular study of one kind
of American court in the broader context of litigation and dispute
processing in American society, in much the same way as Arthur
Leff’s group criticized my first draft.86 Apart from two incidental
references to the Cheyennes, there is no mention of the law-jobs
theory. Yet as I commented in KLRM: ‘This is a strange lapse, for
few juristic theories are better suited than the law-jobs theory for
providing just this kind of perspective.’87 In my 1993 paper I argued
that the “the job of juristic method” provides the link between
these two aspects of Llewellyn’s work – his general sociological the-
ory of law and his specialized study of one kind of American insti-
tution at a particular period of history. This term embraces all the
ways in which the law jobs get done – by institutional structures,
legal devices, handed-down skills, individual inventiveness, and so
on. “The theory of crafts” dealt with one aspect of juristic method
and, along with other sub-theories, was never fully developed in
Llewellyn’s teaching materials for Law in Our Society, although there
are some suggestive pointers.88

85
49 Yale L. Jo. 1355 (1940). Although it is difficult to read, I still consider this
Llewellyn’s most important published paper on the sociology of law. This view
was shared by Roscoe Pound, who called it “much the best outline of a sociol-
ogy of law and the way of going about it which has appeared,” (II Jurisprudence
St Paul: West, 1959 at p. 196) and by Neil MacCormick (conversations with the
author). The article now needs to be read with the manuscript of Law in our
Society (see below pp. 439–43).
86
Below p. 439.
87
KLRM, at pp. 268–9.
88
JJM also includes comments on a number of topics, which I shall not discuss
here: (i) functionalism (notes 50 and 51, see now GJP 102–12); (ii) Skills and
legal education (pp. 171–6/GJB, pp. 22–8); (iii) Llewellyn and Weber (n. 82),
a topic that needs further exploration; and (iv) Morton Horwitz’s thesis that
Llewellyn was a radical in his youth who retreated into a much more conserva-
tive position on adjudication in his later writings, especially The Common Law
Tradition. (Horwitz, op. cit., n.101, supported, among others, by William C.
Heffernan, “Two Stages of Karl Llewellyn’s Thought”, 11 Int’l Jo. Soc. L 134
[1983]). My view, that there is much more continuity in Llewellyn’s thought
422 aft er wo rd

It is worth underlining why this failure to link a specialized study

of appellate adjudication with its broader context is important. First,
not only have commentators wrongly suggested that Realism’s focus
is solely on adjudication, some have further compounded this by
restricting it to appeals on questions of law, omitting or downplay-
ing Frank’s concern with fact finding, which is also surely an aspect
of adjudicative decisions.89 In my view, treating the contested trial
as paradigmatic – especially the contested jury trial – also distorts
perceptions of the place of adjudication in the total process of liti-
gation, which in turn can be set in some broader context, for exam-
ple as one kind of dispute processing.90 Thus even some Realists
can be criticized from the point of view of the law-jobs theory for
having had rather narrow, decontextualized conceptions of adjudi-
cation and litigation.
As significant, from the point of view of contemporary jurispru-
dence, is the fact that one of the most powerfully argued contem-
porary theories of law is based on an even narrower conception of
adjudication. Ronald Dworkin’s central theses (whether we charac-
terize them as a theory of law, a theory of adjudication, or a theory
of legal argumentation) are premised on a conception of adjudi-
cation that is bizarre from any realistic perspective: legal reasoning

than this thesis suggests, is supported by Paul Gewirtz and Michael Ansaldi
(1993, op. cit., n.51) and Frederick Schauer (2011) op. cit., n.52 on the basis
of their close study of Llewellyn’s earlier writings. See also Neil MacCormick
and Zipporah Wiseman, “Llewellyn Revisited” (review of The Case Law System in
America, 70 Texas L. Rev. 771 [1992]). The difference is partly one of emphasis,
but Llewellyn was never a radical about indeterminacy in adjudication.
89
Critics of Frank, e.g., Leiter, focus on Frank’s more polemical Law and the Modern
Mind (New York: Brentano’s) while ignoring his more important Courts on Trial
(Princeton: Princeton University Press, 1949), which was the starting point for
my own work on evidence. Llewellyn’s copy of the first edition of Law and the
Modern Mind, heavily annotated, has recently resurfaced and will be deposited in
the Llewellyn collection in Chicago.
90
On over-concentration on contested jury trials and appellate courts and the sig-
nificance of a total process model of litigation, see William Twining, Rethinking
Evidence (Cambridge: Cambridge University Press, 2nd edition, 2006) at pp.
169, 220–1, 249–52, and 314. A total process model is adopted in T. Anderson,
D. Schum, and W. Twining, Analysis of Evidence (Cambridge: Cambridge Univer-
sity Press, 2nd edition, 2005), which is mainly concerned with construction of
arguments about questions of fact. Reasoning about questions of law and ques-
tions of fact is involved in many legal practice contexts and at many stages of
litigation, not just in courts.
 a ft e r wo r d 423

is equated with reasoning about disputed questions of law in hard

cases and all other kinds of reasoning that occur in legal contexts
are ignored. The actual job of judging includes fact finding, rul-
ing on admissibility, case management, controlling proceedings,
sentencing, other post-trial decisions, and various kinds of judicial
administration, not all of which are trivial or secondary or para-
sitic or intellectually uninteresting. Dworkin is rightly concerned
with the truth conditions of propositions of law and justifications
for interpretation and application of such propositions. These are
important topics, but on their own they hardly constitute a theory
of law. Dworkin places great emphasis on the “practicality” of his
theory, but he only focuses on one aspect of the practices of judges,
let alone of other participants in legal processes. Llewellyn’s empha-
sis on the study of particular courts as working institutions provides
a sharp contrast to Dworkin’s narrow conception of adjudication
even in respect of hard cases. Where their interests overlap, for
instance in regard to appellate judicial discretion, their conclu-
sions could be interpreted as being not very far apart, though they
are arrived at by different routes and expressed in different lan-
guage.91 From the point of view of jurisprudence, the most signif-
icant divide is their very different visions of what is involved in a
practical understanding of law. Dworkin dismisses Llewellyn’s kind
of jurisprudence as “sociological” (a term of disdain) and “phil-
osophically uninteresting”.92 But for the purpose of understanding

91
Although Llewellyn and Dworkin both emphasize the limits of “strong discretion”,
it is to a large extent for different reasons. The extent and significance of the prac-
tical implications of their differences are contestable. For example, they appear to
disagree about whether hard cases “have one right answer”, but that depends on
how Dworkin’s thesis is interpreted; see Neil MacCormick, Rhetoric and the Rule of
Law (Oxford: Oxford University Press, 2005), pp. 276–80. An illuminating way to
explore their similarities and differences on discretion in such cases is to ask: How
far does Dworkin’s Hercules fit Llewellyn’s conception of a Grand Style judge? In
light of Dworkin’s latest work, it is clear that they differ significantly on issues of
meta-ethics. Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Belknap Press,
2011) is a powerful argument for objectivity in ethics. Llewellyn’s position on
these issues wavered from time to time, but he is usually interpreted as a moderate
subjectivist (see KLRM, pp. 185–7, which may too readily label him an “ethical
relativist”). Of course, Llewellyn made no claims to be a moral philosopher. Com-
parison of Llewellyn and Dworkin’s views on adjudication in hard cases/appellate
cases worth appealing raises complex issues that require further exploration.
92
E.g., “The sociological question has neither of much practical nor much phil-
osophical interest. The doctrinal question, on the contrary, is a question both
424 aft er wo rd

law, the question should surely be: “What questions are jurispru-
dentially interesting?”93
A third work in which I build on and interpret Llewellyn needs
a brief mention. My book, General Jurisprudence: Understanding Law
from a Global Perspective (2009) (GJP), explores the implications of
so-called globalization for the discipline of law and for jurispru-
dence as its theoretical, or more abstract, part. Globalization only
became part of the agenda of our discipline in the 1990s, more
than thirty years after Llewellyn’s death. However, I have found the
law-jobs theory and his conception of realism meet some of the
challenges of globalization better than the great bulk of our heri-
tage of legal theorizing, which to an extraordinary extent has been
rooted in the sovereign state and municipal law and societies as
closed units.94 In chapter 4 of General Jurisprudence I try to refine
the law-jobs theory as the basis for constructing a plausible total
picture of law as institutionalized normative ordering in the world
as a whole.95 This requires further elucidation of some concepts –
such as group, institution, social practice, system, and function –
and a defense of Llewellyn’s basic ideas against standard criticisms
of “functionalism”.96 The aim is to construct a conceptual frame-
work that can accommodate nonstate law, legal pluralism, and var-
ious levels of ordering transnational, supranational, international,
and sub-national relations, and that is reasonably inclusive with-
out extending to all social institutions. My thesis involves a “thin
functionalist” interpretation of the law-jobs theory. I have also for-
mulated a flexible definition of “legal” for the limited purpose of
indicating how one might construct a map or total picture of legal
phenomena from a global perspective.

of enormous practical and considerable philosophical significance.” Dworkin

(2006) at pp. 97–8. See further GJP, pp. 25–30 and F. Schauer, “Institutions
and the Concept of Law: A Reply to Ronald Dworkin (with some help from Neil
MacCormick)” in Macksymilian Del Mar and Zenon Bankowski (eds.) Law as
Institutional Normative Order (Farnham: Ashgate, 2009), ch.3.
93
See further below, at pp. 442–3.
94
On Neil MacCormick as an important exception see below p. 442.
95
On “total pictures” and contextual thinking (“see it whole”) see GJB, pp. 140–2,
LIC, pp. 298–9, and GLT, pp. 136–45.
96
GJP, ch. 4. See also ch. 15 (“Surface law”) on “the gap” between “law in books”
and “law in action”.
 a ft e r wo r d 425

The original stimulus for the law-jobs theory was the challenge
of finding out about “the law-ways” of the Plains Indians, perceived
to be reluctant or unable to articulate their ideas in terms of gen-
eral rules or norms.97 The solution was to enquire how the law jobs
got done in any group through the study of particular cases. I have
normally interpreted the main value of the law-jobs theory as heu-
ristic in that it provides a set of questions that one can ask about
the social practices of any group through analyzing actual cases.98
Most commentators have ignored this heuristic aspect and have
dismissed the theory as an example of outdated functionalism.99
Chapter 4 of General Jurisprudence sets out a defense in terms of
“thin functionalism”, whilst following Llewellyn in refusing to pro-
vide a general definition of law outside a specific context. I hope
that my approach in this chapter is one of which Llewellyn would
have approved.100

(ii) Interpretations of KNL and of Realism generally since 1971 The

most significant development in our understanding of Realism

97
KLRM, pp. 154–5.
98
For examples of the heuristic use of the law-jobs theory see GJB, pp. 164–7,
193.
99
See below pp. 433–4.
100
Others of my publications which go beyond KLRM in interpreting Llewellyn
and R/realism include (a) General Jurisprudence (GJP, op. cit.) ch. 4 (law jobs and
defining law) and ch 10 (surface law).) (b) “The Law in Context Movement”
in P. Cane and J. Conaghan (eds) The New Oxford Companion to Law (Oxford:
Oxford University Press, 2008) 680–2; (c) Review of Natalie Hull, Roscoe Pound
and Karl Llewellyn, 115 LQR 152–60 (1999); (d) Review of The Case Law System
in America, 100 Yale Law Jo 1093-1102 (1991); (e) “Alternative to what? Theories
of Litigation and Dispute-Settlement in Anglo-American Jurisprudence: Some
Neglected Classics”, 56 M.L.R. 381 (1993); (f) “Law and Social Science: The
Method of Detail”, New Society, June 27, 1974; (g) “Law and Anthropology: A
case-study in Interdisciplinary collaboration”, 7 Law & Society Rev, 561 (1973),
reprinted in R. Luckham (ed.) Law and Social Enquiry: Case studies of Research
(Scandinavian Institute of African Studies ICLD [1981]); (h) “Alan Swan:
The Chicago Connection” 64 University of Miami Law Review 9–14 (2009);
(i) Entries on C K Allen (6–7); W. W. Cook (125); John Dickinson (149–50);
Jerome Frank (190–3); Karl Llewellyn (319–22); J. H. Wigmore (531–5); Sam-
uel Williston (543–4) and Hessel Yntema (554–5) in Biographical Dictionary of the
Common Law, ed. A. W. B. Simpson (London, Butterworth 1983); (j) “Normative
and Legal Pluralism” (Bernstein Lecture, 2009) 20 Duke Jo of Comparative and
International Law Journal pp.473–517. (2011).
426 aft er wo rd

since 1971 has been the growth of interest in legal biography and
intellectual history.101 In particular, research by Purcell, Schlegel,
Kalman, Hull, Duxbury, Horwitz, and others has broadened and
deepened our understanding of American legal history in the
first half of the twentieth century. The nearest approach to a full
biography of Llewellyn is Natalie Hull’s excellent book, Roscoe
Pound and Karl Llewellyn.102 This draws on a wide range of archi-
val sources and produces some new information about Llewellyn,
including the fact that he was the subject of a full-fledged security

101
More than a dozen books published since 1973 deal extensively with American
Realism and to a lesser extent with Karl Llewellyn. These include, in chrono-
logical order: Edward A. Purcell (1973) The Crisis of Democratic Theory: Scientific
Naturalism and the Problem of Value (Lexington: University of Kentucky Press);
G Edward White, Patterns of American Legal Thought (Indianapolis: Bobbs-Merrill,
1978); Robert S. Summers (1982) Instrumentalism and American Legal Theory
(Ithaca: Cornell University Press,); Laura Kalman, (1986) Legal Realism at Yale
1927–1960 (Chapel Hill: University of North Carolina Press); Morton J. Horwitz
(1992) The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy
(New York: Oxford University Press); Ulrich Drobnig and Manfred Rehbinder
(eds.) (1994) Rechtsrealismus, multikultirelle Gesellschaft und Handelsrecht: Karl
Llewellyn und seine Bedeutung heute (Berlin: Duncker and Humblot); John Henry
Schlegel (1995) American Legal Realism and Empirical Social Science (Chapel Hill:
University of North Carolina Press); Neil Duxbury (1995) Patterns of American
Jurisprudence (Oxford: Clarendon Press); N. E. H. Hull (1997) Roscoe Pound and
Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chi-
cago Press); George W. Leibman (2005) The Common Law Tradition: A Collective
Portrait of Five Legal Scholars (New Brunswick: Transaction Publishers); Paul
Maharg (2007) Transforming Legal Education: Learning and Teaching the Law in the
Early Twenty-first Century (Farnham: Ashgate); Wouter De Been (2008) Legal Real-
ism Regained: Saving Realism from Critical Acclaim (Stanford: Stanford University
Press); Brian Z. Tamanaha (2010) Beyond the Formalist-Realist Divide: The Role of
Politics in Judging (Princeton: Princeton University Press). Most of these have
good bibliographies through which the extensive periodical literature can be
traced. The postscript to the 1985 reissue of KLRM lists the main periodical
literature between 1971 and 1985. In addition there have been brief entries
in biographical dictionaries (e.g., Roger K. Newman (ed.) (2009) The Yale Bio-
graphical Dictionary of American Law (New Haven: Yale University Press); and
A. W. Brian Simpson (1984) Biographical Dictionary of the Common Law (London:
Butterworth); and the growing number of legal encyclopedias and companions,
to say nothing of house histories of particular law schools. There have also been
doctoral theses by scholars in Continental Europe, including Francois Michaut,
Wouter de Been, and Felix Sanchez Dias.
102
N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurispru-
dence (Chicago: University of Chicago Press, 1997), reviewed by the author in
115 LQR 152 (1998).
 a ft e r wo r d 427

investigation by the FBI in the early 1950s. Hull places more

emphasis than I do on Karl’s “poetic side”103 and suggests that he
was politically more active, more courageous, and less ambivalent
than I may have suggested in KLRM. She treats both Pound and
Llewellyn as “bricoleurs” who drew eclectically on a variety of in-
tellectual streams in order to construct a form of jurisprudence
that was quintessentially American. I think that both Pound and
Llewellyn were more cosmopolitan and their ideas are of wider
geographical significance than she suggests. Whether Llewellyn’s
“whole view” can be interpreted as being more coherent than an
eclectic patchwork quilt is an issue that I consider later. However,
we agree that he is at least as interesting for particular insights
as for any general theory that can be attributed to him. Hull’s
book is well worth reading, but it does not claim to be a rounded
biography. Rather it focuses on the relationship and underlying
similarities between Pound and Llewellyn, despite their apparent
disagreements.
More recently, Robert Whitman has published a series of interest-
ing, mainly co-authored, papers that deal with particular aspects of
Llewellyn’s life and concerns.104 The five papers supplement KLRM
103
Hull charges me with underestimating the significance of Llewellyn’s poetry:
she acknowledges that I emphasize Llewellyn’s poetic side and agrees about the
quality of his verse, but suggests that Llewellyn took himself more seriously as a
poet than I allowed. The question of quality is a matter of opinion, but if I were
to revisit his whole ouevre, I doubt that I would change my view that “no great
talents await discovery” (KLRM, p. 119). I would quibble about characterizing
as “poems” the UCC or some of his introspective musings, but if her main point
is that Llewellyn sometimes used poetry as a medium to express his inner con-
cerns and feelings in language that ordinary prose could not capture, I do not
disagree. How far his poems throw otherwise inaccessible light on his juristic
ideas is more debatable. (cf. Murray, Whitman, and P. Schirrer [1997] op. cit.).
104
(i) Robert Whitman, “Soia Mentschikoff and Karl Llewellyn: Moving Together
to the University of Chicago Law School”, 24 Connecticut L. Rev. 1119 (1992);
(ii) Dom Calabrese, Peggy Pschirrer, and Robert Whitman, “Karl Llewellyn’s
Letters to Emma Corstvet Llewellyn from the Fall meeting of the National Con-
ference of Commissioners on Uniform State Laws”, 27 Connecticut L. Rev. 523
(1995); (iii) Henry F. Murray, Peggy M. Pschirrer, and Robert Whitman, “The
Poetic Imagination of Karl Llewellyn”, 29 U. Toledo L. Rev. 27 (1997); (iv)
James J. Connolly, Peggy Pschirrer, and Robert Whitman, “Alchoholism and
Angst in the Life and Work of Karl Llewellyn”, 24 Ohio N. U. L.Rev. 43 (1998);
(v) Peter Dinunzio, Elinor Kim, and Robert Whitman, “Karl N. Llewellyn: How
Icelandic Saga Literature Influenced the Scholarship and Life of an American
Legal Realist”, 39 Connecticut L. Rev. 1923 (2007).
428 aft er wo rd

in a number of ways. The first in time deals with Karl’s letters to

his wife, Emma Corstvet, during a meeting of the National Con-
ference of Commissioners on Uniform State Laws in 1941. As an
informal snapshot of Llewellyn’s view of the process and the atmo-
sphere of the meetings it adds color to the more staid accounts of
the drafting process. The second gives details of the circumstances
of the Llewellyns’ move to Chicago and confirms the judgement
that this change rejuvenated him after a period of turmoil and
crisis in the last years at Columbia. The third explores in depth
Llewellyn’s “poetic” side and follows Hull in suggesting that I was
too dismissive of his poetry. I find little to disagree with here about
Llewellyn’s personality, but I stick by my assessment of his talent as
a poet. The fourth, and the most substantial, deals in great detail
with Llewellyn’s alcoholism and other personal problems, largely
on the basis of letters from Karl to Emma in the last years of their
fraught marriage. The fifth is a detailed analysis of Llewellyn’s
fascination with Icelandic sagas. I did not take this very seriously
and barely touched on it in KLRM. I can recommend the article
and leave the readers to form their own opinions as to whether
Whitman’s emphasis on this aspect of Llewellyn’s thought is well
judged.
Some of these articles are based on the papers of Emma Corst-
vet Llewellyn to which I did not have access. In addition to pro-
ducing many new facts, Whitman has probed intimate details of
Llewellyn’s private life in order better ‘to understand Llewellyn
and his times, but more importantly to understand the progression
of his thought’.105 This raises issues about the relationship between
intimate biography, academic life and juristic ideas that have been
debated in relation to Nicola Lacey’s brilliant biography of Her-
bert Hart.106 It is strange to find my two most influential teachers
the objects of this kind of treatment. Juxtaposed, the two accounts
reveal unexpected similarities between Hart and Llewellyn: both
suffered from inner turmoil, self-doubt, depression, and concerns
about their sexuality (though of different kinds); both character-
ized themselves as “outsiders”; both were skeptical about objectivity
in morals, but had doubts about their skepticism; there is even some

105
Whitman et al. (1998), at p. 113.
106
Lacey (2004), op. cit., n.9, discussed in Twining, “Schauer on Hart”, 119 Har-
vard Law Review Forum 105–12 (2006).
 a ft e r wo r d 429

similarity in their being subjected to gruesome forms of “therapy”

for their problems; both authors suggest that inner turmoil con-
tributed to creativity. But, of course, Hart and Llewellyn had very
different backgrounds, intellectual milieux, styles, and conceptions
of jurisprudence. Whitman justifies his use of intimate personal
detail to illuminate “the progression of [Llewellyn’s] thought” and
different phases of his career. Lacey is a feminist who rejects the
private/public distinction and “who treats jurisprudence as a form
of social practice in which the personal and the professional are
seamlessly linked”.107 Some commentators have objected to such
revelations as being an unseemly invasion of privacy, demeaning
to the subjects, and largely irrelevant to their ideas. I have found
reading Lacey and Whitman’s revelations about people with whom
I have had close, but not intimate, relations both distressing and
illuminating. Neither author can be accused of unseemly pruri-
ence, but the same cannot be said of all readers and commenta-
tors. In Lacey’s case I think that these details help to explain Hart’s
career and trajectory (his obsession with Dworkin, for example).
They explain some aspects of his thought, such as his disdain for
sociology and his deference to Oxford philosophers as a reference
group, but it throws less light on the rule of recognition, the inter-
nal point of view, and the distinction between primary and second-
ary rules. In respect of Llewellyn, Whitman’s account provides a
plausible explanation of why Llewellyn devoted so much time to
the Cheyennes and the Pueblos; it suggests that some of his most
important theoretical writings were produced at times of personal
crisis, and explains some of his career decisions, including the
move to Chicago. The issues are too complex to pursue here and,
since Whitman plans to turn these articles into a book, this is work
in progress and it would be premature to comment on it in detail.
Whitman’s articles and interpretations supplement KLRM. On
many points we agree, but where we differ, the question whether
they substantially challenge my interpretations of forty years ago is
less clear. What is clear is that they add significantly to the litera-
ture, but they will not be to everyone’s taste. It is also clear that, like
Hull’s, Whitman’s contribution falls short of a rounded biography
that sets Llewellyn’s writings and other contributions in the con-

107
Samantha Besson, “Deconstructing Hart” (review of Lacey) 6 German L. Jo.
1093 (2005) citing Lacey (25).
430 aft er wo rd

text of a fuller account of his life and times than KLRM attempted.
There is still room for such a work.
Interpretations of Realism in general and Llewellyn continue
to appear.108 Here I shall comment on two attempts to construct
a solid philosophical underpinning for American Legal Realism,
whose main proponents did not claim to be philosophers. Some
commentators have criticized KLRM for not setting out Llewellyn’s
system or general theory as a coherent whole. In the past, my stan-
dard answer has been that Llewellyn was not a systematic thinker –
one should read him more for particular insights and arguments –
and that my aim in KLRM was to present each of his works in the
context of his immediate concerns and general intellectual devel-
opment. As a guide to specific works, this approach was, I think,
justified. But Llewellyn himself had planned a final work which
promised to be a synthesis of his whole view. So it is reasonable to
ask: Can we not reconstruct what he had in mind?
Here it is important to distinguish between biography, intellec-
tual history, interpreting actual texts, and “rational reconstruction”
of a thinker’s ideas in terms of what he or she could, might, or
should have said – that is moving beyond charitable reading to
making a thinker’s theory or text “the best it can be”.109 This dis-
tinction is illustrated by two interesting attempts at rational recon-
struction of Legal Realism as a coherent and defensible position or
theory. First, Robert Summers’ Instrumentalism and American Legal
Theory aims to reconstruct “a meaningful and distinctive theory of
law and its use” from general tendencies in American legal thought
between 1890 and 1940.110 The author focused on texts from Hol-

108
Of the extensive shorter literature I would single out Hanoch Dagan’s “The
Realist Conception of Law” 57 University of Toronto L. Jo. 607 (2007) and
Frederick Schauer’s Introduction to Llewellyn’s Theory of Rules (2011, op. cit.)
as being of particular interest.
109
Paraphrasing Ronald Dworkin, Law’s Empire (London: Fontana, 1986), ch. 2.
cf. ‘By “rational reconstruction” is meant the activity of explaining fragmentary
and potentially conflicting data by reference to theoretical objects in the light
of which the data is seen as relatively coherent, because presented as part of a
complex, well-ordered whole.’ Neil MacCormick and Robert Summers (eds.)
Interpreting Statutes – A Comparative Study (Aldershot: Ashgate, 1991) at p. 19.
110
Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca, NY: Cor-
nell University Press, 1982). There are excellent, generally favorable, reviews
by Willard Hurst (82 Michigan L. Rev. 852 (1984), and Roger Brownsword
(48 Modern L. Rev. 116 (1985)).
 a ft e r wo r d 431

mes, Dewey, and Pound as well as leading Realists and presented a

model of “pragmatic instrumentalism” as a distinct fourth (Amer-
ican) tradition that sits alongside analytical positivism, natural
law, and historical jurisprudence. Rather than defend it as a fully
worked out view, he suggested that it had yet to fulfill its promise –
there is “important unfinished business”.111 Summers was quite fair
to the texts, but openly went beyond them. I have some difficulty
understanding what is the precise relationship between his ideal
type and the original texts and their authors. This is not history,
but neither is it Summers’ own theory. So it is unclear what status
this reconstruction has. Summers’ book contains much interesting
material, but in respect of the Realists he falls into the trap of look-
ing for shared ideas and leaving out the most interesting contribu-
tions of individuals, such as Frank on fact finding and Llewellyn’s
law jobs.112
A different kind of philosophical reconstruction is offered by
Brian Leiter in Naturalizing Jurisprudence.113 One of Leiter’s critics,
Michael Moore, describes the project as follows:
Utilizing his considerable sophistication, Leiter would reconstruct the
Realist programme in light of the contemporary philosophical move-
ments known as naturalism and pragmatism. On Leiter’s reconstruction,
the Legal Realists had good naturalist and pragmatist grounds for turning
jurisprudence into a social science of judicial behavior.114

Moore’s main objection is historical. As philosophers, “the Realists

were simply confused”.115 Leiter’s response is:
My interpretation is, after all, a reconstruction ‘it puts back together’ in
philosophical terms the largely unphilosophical arguments and positions
of the American Legal Realists. The philosophy is mine, the basic argu-
ments and ideas are theirs.116

111
Summers (1982) at pp. 61, 223, 256–8, et passim.
112
For a longer analysis of Summers’ book see TAR, n.24 (GJB, pp. 103–4).
113
Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Nat-
uralism in Legal Philosophy (New York: Oxford University Press, 2007).
114
Michael Moore, Educating Oneself in Public: Critical Essays in Jurisprudence
(Oxford: Oxford University Press, 2000) at pp. 32–3, cited by Leiter at p. 103.
See further Michael Steven Green, “Leiter on the Legal Realists”, William and
Mary Research Paper No 09-98 (Law and Philosophy forthcoming).
115
Ibid., p. 33.
116
Leiter at p. 104.
432 aft er wo rd

Leiter’s work is a welcome attempt to bridge the divide, which has

grown to a chasm, between recent analytical legal philosophy con-
cerned with a priori analysis of abstract concepts and empirical
legal studies. I share with Leiter the view that there is continuity
between analytical and empirical enquiries and it is refreshing to
find a philosopher taking the idea of legal realism seriously.117 I also
broadly sympathize with his critique of some tendencies in analyti-
cal legal philosophy.118 However, I do take issue with one aspect of
Leiter’s approach. He continues the practice of making misleading
generalizations about the Realists and of focusing on alleged shared
ideas, with hardly any reference to the distinctive contributions of
individuals.119 Since Realism “naturalized” is Leiter’s theory, he is
of course free to restrict it to adjudication on questions of law. But
if he had focused on one thinker, for example Llewellyn or Frank
or Pound, and attempted a rational reconstruction of their ideas as
a whole, he might have articulated a richer, more interesting, and
less narrow theoretical position in each case.120

117
The “Naturalist Turn” in philosophy is a morass, involving a wide spectrum of
views that cannot be pursued here. I have some doubts about the need for a
sophisticated philosophical justification for the proposition that there is and
should be an intimate relationship between conceptual elucidation and empir-
ical legal studies. If one looks on concepts pragmatically as thinking tools, as
Bentham, Dewey, and Llewellyn all did, it is clear that empirical legal studies
need appropriate and usable conceptual tools for interpretation, description,
and explanation of legal phenomena. One task for analytical jurisprudence is
developing such tools (see GJP, pp. 21–5, 54–6, 445).
118
Leiter (2007), ch 6. Leiter sums up the increasingly widespread feeling that
aspects of analytical legal philosophy have gotten bogged down in repetitious,
unworldly, and possibly trivial debates: ‘Now it is curious that this kind of meth-
odology debate is found nowhere else in philosophy, not even in the domains
of practical philosophy, of which Perry insists jurisprudence is properly a
branch. It is an interesting question – at least sociologically, perhaps philo-
sophically too – why jurisprudence should have been afflicted with this debate,
while moral and political philosophers go about their business only bothered
– if bothered at all – by the skeptics about intuitions and concepts’ (at pp.
164–5). Cf. Andrew Halpin, “The Methodology of Jurisprudence: Thirty Years
Off the Point” (2006) 19 Canadian Jo. Law and Jurisprudence 67, and Schauer
(2009), op. cit., n.92.
119
p. 61.
120
A striking example is Leiter’s criticism of the seemingly widespread acceptance
of “the Frankification” of Realism, meaning Frank’s extreme interpretation
of “the Core Claim” of Realism (ibid. at pp. 61–3). This refers to the unpre-
dictability of decisions on questions of law; yet no mention is made of Frank’s
 a ft e r wo r d 433

As noted previously, a great deal has happened in legal theory

since Llewellyn’s death, especially in the 1960s and 1970s. Hart’s
The Concept of Law (1961) was published only a few months
before Llewellyn died. Some movements became salient after
1962. We can only speculate about how he would have reacted
to critical legal studies, feminist jurisprudence, critical race the-
ory, poststructuralism, autopoiesis, various forms of postmod-
ernism, Continental European “critical theory”, and recent
long-running debates between positivists and anti-positivists.
Conversely, although there have been some comments on aspects
of Llewellyn’s work from these perspectives,121 on the whole he
has been ignored or treated as marginal by devotees of these
trends or movements.
There are two major exceptions to this pattern: sociology of law
and law and economics. First, Llewellyn has been seen as a signif-
icant pioneer in sociology and anthropology of law. However, the
anthropologists generally treat The Cheyenne Way as being merely
of historical significance.122 Sociologists and social theorists have
tended to dismiss Llewellyn as a follower of discredited 1930s func-
tionalism.123 The former judgement seems reasonable, but I have
defended Llewellyn’s law-jobs theory as being more Mertonian than
Parsonian and thus immune from most of the standard criticisms

argument that the main source of uncertainty in litigation relates to fact find-
ing. I used Frank’s one interesting idea – that academics should take fact find-
ing seriously – as the jumping-off point for my work on evidence. However, I
treat Frank as a thinly disguised idealist and reformer, rather than as a skeptic
in any strong sense of the term: see my Rethinking Evidence (Cambridge: Cam-
bridge University Press, 2nd edition, 2006), ch. 4. On a possible richer recon-
struction of Llewellyn’s “Whole view”, see below 439–42.
121
On Horwitz and critical legal studies, see above n.88(iv).
122
A conference at Bellagio in 1985 marked a watershed in legal anthropology.
Several leading scholars acknowledged that in treating small-scale societies as
self-contained, timeless units they had neglected broader historical and geo-
graphical contexts. (See June Starr and Jane Collier, History and Power in the
Study of Law (Ithaca: Cornell University Press, 1989). While echoing this criti-
cism, Laura Nader’s introduction to a reissue of The Cheyenne Way in the Legal
Classics Library (Delman, NJ: Gryphon, 1992) is generally very sympathetic. See
also L. Nader, Life of the Law: Anthropological Projects (Berkeley, CA: University of
California Press, 2005).
123
E.g., Alan Hunt, The Sociological Movement in Law (London: MacMillan, 1978)
46–53; cf. Roger Cotterrell, The Sociology of Law: an Introduction (London:
Butterworth, 1992).
434 aft er wo rd

of functionalism.124 There is room for a re-appraisal of Llewellyn’s

continuing significance in the sociology law (not least in relation to
his criticisms of Ehrlich and Weber),125 his ideas on legal technol-
ogy or juristic method, and in comparison to the contributions of
Neil MacCormick and Philip Selznick.126 Frederick Schauer’s edi-
tion of The Theory of Rules (2011) also opens up possibilities of reap-
praisal of Llewellyn’s contribution to the general theory of norms.
With respect to law and economics the situation is less clear.
From an early stage Llewellyn took an interest in the relationship
between law and economics.127 His first wife was an economist and
he was familiar with the work of Commons, Veblen, Robert Hale,
and Berle and Means, for example. His work on commercial law
and business practice had an important economic dimension.
Edward Levi, in an obituary, credited him with having done pio-
neering work in the relationship between law and economics.128
However, economic analysis was never a central concern.
Although law and economics as a discernible movement did not
come into prominence until later, the foundations had already been
laid at the University of Chicago by the time Llewellyn arrived in
1951. The Chicago School of Economics, spearheaded by Milton
Friedman, was in full flow; Aaron Director, strongly supported by
Dean Edward Levi, had begun teaching in the law school and is
reputed to have converted Levi to his narrow, technocratic version of
economic analysis of law – a pure form of classical free market theory.
By the time I joined as a student in 1957, Director’s “General The-

124
The fullest defense is in GJP, ch 4.
125
Llewellyn made some sharp criticisms of Ehrlich in Recht, Rechtsleben und Gesell-
schaft, op. cit., n.50, in respect of the concepts of “custom” and living law”; he
was generally more sympathetic to Weber (some of whose work he began to
translate in the 1930s [K. L. P. B. II. 44]). A review copy of Max Rheinstein’s
edition (with Edward Shils) of Law in Economy and Society (Cambridge, MA: Har-
vard University Press, 1954) was found among Soia Mentschikoff’s papers. The
first part contained extensive marginalia by Llewellyn, some seemingly criti-
cal. The book is now deposited with the Llewellyn papers in Chicago. There
is scope for a detailed exploration of the differences and affinities between
Llewellyn and Weber.
126
See Martin Krygier, Ideals in the World: The Thought of Philip Selznick (Stanford
University Press, forthcoming). On MacCormick see below p. 442.
127
See especially Llewellyn, “The Effect of Legal Institutions Upon Economics” 15
American Economic Review 665–83 (1925).
128
11 U. Chi. L. School Record 29 (1962), cited KLRM, p. 113.
 a ft e r wo r d 435

ory of Price” was a prerequisite for antitrust and cognate courses.129

Llewellyn seems to have been ambivalent, perhaps even unenthusi-
astic, about this development.130 It was a very different kind of eco-
nomics from that of his youth and, strikingly, the leading Chicago
pioneers are not cited in his later writings: for example, the indexes
of The Common Law Tradition and Jurisprudence: Realism in Theory and
Practice contain no entry for Director, Friedman, Coase, or Stigler.
Conversely, many of the leaders of law and economics seem not to
have been very interested in Llewellyn.131 Posner and Duxbury are
surely correct that law and economics did not grow out of Realism.132
I have not tried to canvass the literature, but it would hardly be sur-
prising if Llewellyn is largely marginal to today’s concerns, except
where commercial law and economic analysis clearly overlap.133

Developments in the UCC and commercial law

I am not a specialist in commercial law. I have not tried to follow

the many developments in the story of the UCC over the last forty

129
See above n.6.
130
Neil Duxbury, in his useful account of the beginnings of the movement in
Chicago, suggests that Llewellyn “disapproved” of this type of legal-economic
analysis. This may well have been the case, but I have no evidence of it. Neil
Duxbury, Patterns of American Jurisprudence (Oxford: Oxford University Press,
1995), ch 5 at p. 343. Later Soia Mentschikoff and Henry Manne, a powerful
leader in the movement, failed to get on in Miami and Manne removed his
institute to George Mason University – but that could have been due more to a
clash of personalities or faculty politics than an ideological falling out.
131
See however, Douglas Baird, “Llewellyn’s Heirs” 62 Louisiana L. Rev. 1287
(2002): ‘Our own generation’s giants of commercial law – scholars such as Lisa
Bernstein, Robert Scott, and Alan Schwarz – are at once Llewellyn’s critics and
his true heirs. In finding fault with Llewellyn, they too often fail to understand
that they stand on his shoulders’. at p. 1288. Cf. Kipling: ‘And His Own Disciple
Shall wound him worst of all.’ Kipling, op. cit., n.56, last stanza (original italics).
Some economic analysis of the UCC can be interpreted as involving implicit
criticism of Llewellyn’s ideas on the Code.
132
See above n.101.
133
See the works cited in the next section. A continuing link between legal anthro-
pology and economic analysis is the work of Robert Ellickson, see for example
his Order Without Law: How Neighbours Settle Disputes (Cambridge MA: Harvard
University Press) and “Law and Economics Discovers Social Norms”, 27 Jo.
Legal Studies 531 (1998).
436 aft er wo rd

years. This section only suggests a way into the literature. For the
non-specialist a good starting-point is Douglas Litowitz, Perspectives
on the Uniform Commercial Code.134 This is a helpful anthology of
short readings covering many topics, including the drafting, enact-
ment, methodology, and interpretation of the UCC, Llewellyn’s
contribution, the politics of amendment and federalization, recent
scholarship, and assessments of the Code. This is useful and rea-
sonably up to date as general background. There are collections
of more substantial essays edited by Clayton P. Gillette and Jody S.
Kraus and Steven Walt.135 For reference, there are some substantial
treatises,136 numerous hornbooks and course books, practitioner
services, and websites.137
Apart from specialized journals,138 there is a massive, scattered,
proliferating periodical literature. Highlights of the academic
commentaries are indicated in the anthologies mentioned earlier.
My impression, as a non-expert, is that theoretical, historical, and
empirical writings on the UCC are rather fragmented.139 There is

134
Douglas E. Litowitz, Perspectives on the Uniform Commercial Code (Durham, NC:
Carolina Academic Press, 2nd edition, 2007)
135
Clayton P. Gillette (ed.) The Creation and Interpretation of Commercial Law (Alder-
shot: Ashgate, 2003); Jody S. Kraus and Steven D. Walt (eds.), The Jurisprudential
Foundations of Corporate and Commercial Law (New York: Cambridge University
Press, 2000); see also the excellent Symposium, Essays in Honor of William D.
Hawkland: Unifying Commercial Law in the 20th Century: Understanding the Impulses
and Assessing the Effort 62 Louisiana L. Rev. No. 4 (2002).
136
E.g., Robert S. Summers and James J. White, Uniform Commercial Code (St. Paul,
MN: West, 6th edition, v. 4, 2010) and William D. Hawkland, Uniform Commer-
cial Code Series (looseleaf) Eilmette, IL: Callaghan (regularly updated).
137
The National Conference of Commissioners on Uniform State Laws has two
websites that contain a mass of both current and historical material (http://
www.nccusl.org/ and http://www.law.upenn.edu/bll/ulc/ulc/htm).
138
E.g., Journal of Law and Commerce and the Uniform Commercial Code Law Journal.
139
See, however, Zipporah Wiseman, “The Limits of Vision: Karl Llewellyn and
the Merchant Rules 100 Harvard L. rev. 465 (1987); Robert Whitman, “Karl
Llewellyn’s Letters to Emma Corstvet Llewellyn from the Fall 1941 Meeting of the
National Conference of Commissioners on Uniform State Laws”, 27 Connecticut
L. Rev 523 (1995); Allen R. Kamp, “Uptown Act: A History of the Uniform Com-
mercial Code: 1940–49”, S.M.U.L.Rev. 275 (1998) and “Downtown Code Code:
A History of the Uniform Commercial Code 1949–54” 49 Buffalo L. Rev. 359
(2001); and Symposium, Origins and Evolution: Drafters Reflect Upon the Uniform Com-
mercial Code, 43 Ohio State L.Jo. 535 (1982). See also, R. Speidel, ”The New Spirit
of Contract”, 2 Jo. L. and Commerce 193 (1982).
 a ft e r wo r d 437

some discussion of the relationship between Llewellyn’s jurispru-

dence and the Code (especially article 2),140 the extent to which he
compromised during the drafting process,141 and whether his influ-
ence survives.142 Based mainly on her detailed empirical research
in several industries Lisa Bernstein published a series of forceful
articles criticizing Llewellyn’s assumptions about the desirability
and feasibility of making the Code responsive to merchant prac-
tices and expectations143 and describing how diamond merchants
in New York and other merchant groups and trade associations
have developed their own sets of rules and institutions that they
consider superior to the state legal system.144 Without necessarily
mentioning Llewellyn, economic analysis of law has been used to
explore whether open-ended standards or “bright line rules” are
preferable.145 Robert Scott and others have shown convincingly

140
See Wiseman (1987) and Allen R. Kamp (1998) and 2001, op. cit., n.139, the
extracts in Litowitz, op. cit; John D. Wladis, “UCC section 2-207: The Drafting
History”, 49 Business Lawyer 1029 (1994) (drawing extensively on several
archives); and Alan Schwartz, “Karl Llewellyn and the Origins of Contract The-
ory”, in Kraus and Walt, op. cit. (2000). Much discussed is Richard Danzig, “A
Comment on the Jurisprudence of the Uniform Commercial Code” 27 Stanford
L. Rev. 621 (1975) (arguing that the UCC gives too much power to judges),
opposed briefly but forcefully by Grant Gilmore, in The Ages of American Law
(New Haven: Yale University Press, 1977). See further Litowitz, op. cit., ch.4.
141
E.g., Wiseman (1987) op. cit.
142
Gregory E. Maggs, “Karl Llewellyn’s Fading Imprint on the Jurisprudence of
the Uniform Commercial Code”, 71 U. Colorado L. Rev. 541 (2000).
143
Lisa Bernstein, “Opting out of the Legal System: Extralegal Contractual Rela-
tions in the Diamond Industry”, 21 Jo. Legal Studies (1992); “Merchant Law in a
Merchant Court: Rethinking the Code’s Search for Immanent Business Norms”’
144 U. Pa L. Rev 1765 (1996); “The Questionable Empirical Basis of Article 2’s
Incorporation Strategy: A Preliminary Study” 66 U. Chicago L. Rev. 710 (1999);
“Private Commercial Law in the Cotton Industry: Creating Co-operation Through
Rules, Norms and Institutions”, 99 Michigan L. Rev. 1724 (2001). Bernstein’s
work seems to me to be very interesting, but I do not have the expertise to assess
to what extent, and in what respects, her findings undermine the working assump-
tions of the UCC. Commercial lawyers are split on whether we are better off with
the UCC, for all its faults, than without it, See Litowitz, op. cit., ch. 10.
144
Bernstein, op. cit., last note.
145
E.g., Robert E. Scott, “The Case for Formalism in Relational Contract”,
94 Northwestern L. Rev. 847 (2000); cf. Geoffrey P. Miller, “Bargaining on
the Red-Eye: New Light on Contract Theory” (May 6, 2008). NYU Law and
Economics Research Paper No. 08-21. Available at SSRN: http://ssrn.com/
abstract=1129805.
438 aft er wo rd

that the key to Llewellyn’s basic ideas about sales is to be found

in his writings on sales in the 1930s rather than his later jurispru-
dence.146 In retrospect, I regret that I did not do justice to the sales
articles in KLRM.
There have been many criticisms of Llewellyn’s impressionis-
tic and anecdotal approach to facts. Empirical research has chal-
lenged some working assumptions of the UCC, but I have not
found any convincing suggestions about how future commercial
legislation can as a practical matter be based on systematic and rig-
orous empirical research or the extent to which there is a middle
ground of trying to rely on the best available data and experience,
when more rigorous research is not feasible.147 We have not got very
far in determining what empirical information is relevant, desir-
able, and feasible in law making. There is still a tendency to assume
an all-or-nothing view – criticizing intuition, horse sense, practi-
cal experience, and expert opinion. In the era of evidence-based
medicine and evidence-based policy – which sometimes exhibit
tendencies to inappropriate scientism – perhaps the time is ripe
to re-examine Llewellyn’s ideas of “horse sense” and his dictum
“knowledge does not have to be scientific to be useful and impor-
tant”148 – especially in the context of law making and assessing the
impact of legislation.

Part C Unfinished agenda

We have seen that since Llewellyn’s death almost fifty years ago sev-
eral of his works have been made more accessible, including some
published for the first time. Commentaries on Llewellyn in partic-
ular and on Legal Realism continue and there is a steady stream of
writing about the Uniform Commercial Code. All of these suggest
that interest in Llewellyn is still alive.
We have also seen that there is some unfinished business. Karl
Llewellyn and Soia Mentschikoff both merit a substantial personal
biography. There is a need for more detailed history of the draft-
ing, politics, and subsequent life of the Uniform Commercial Code

146
Robert E. Scott, “The Rise and Fall of Article 2”, 62 Louisiana L. Rev. 1009
(2002) esp. at 1014–29.
147
KLRM, pp. 313–21.
148
Llewellyn, “The Theory of Legal ‘Science’”, 20 N. Carolina L. Rev 1 (1941) at
p. 22. This article is still well worth reading.
 a ft e r wo r d 439

and, more broadly, of commercial law in America in the twentieth

century. Fifty years on there is still plenty of scope for fresh inter-
pretations of and perspectives on Llewellyn and Realism.
However, it is not surprising that many people may think that as
a thinker and a person, Karl Llewellyn is mainly or merely of histor-
ical interest. His influence on commercial law is probably waning.
He does seem to have faded from many jurisprudence courses and
he has not been in the centre of the most salient Anglo-American
debates. How significant or relevant he is today is a largely a mat-
ter of individual judgement, depending on one’s concerns and
interests. However, I shall conclude by making the case for treating
Llewellyn’s unfinished work as of particular contemporary impor-
tance.
In KLRM, I reported that at the time of his unexpected death
Llewellyn was planning a series of lectures in Germany which
would be a vehicle for a restatement and summation of his “Whole
View”. I devoted chapter 9 to his course materials on Law in our
Society and included some extracts in an appendix. I expressed the
hope that someone else would take up the challenge of produc-
ing a complete edition of this work.149 It is undoubtedly the most
important of Llewellyn’s surviving unpublished manuscripts and, if
well edited, it might come to be seen as his most important work.
Rescuing and constructing an authentic text of this work presents
a formidable challenge. There are several versions of the course
materials. They are cryptic, allusive, and incomplete, requiring
extensive annotation. There are also transcripts of recordings of
numerous classes given in this and related courses; some untran-
scribed tapes may be rescuable; and there are student essays and
notes which bear on the manuscript.150 Of course, Llewellyn’s pub-
lished writings also contain clues to what he might have meant, and
they can be used to complement and supplement the core text in
various ways. Reconstructing this as a definitive text will be as diffi-
cult as doing the same for some of Bentham’s unpublished works.

149
KLRM, pp. 171–2.
150
The Guide to the Karl Llewellyn Papers lists over 100 transcripts headed “Juris-
prudence” (starting at Harvard in 1948–9) and a number of other potentially
relevant items. I have retained my student notes on Llewellyn’s course, the
essays I wrote for him (with his extensive comments), and some preliminary
material relating to editing Law in Our Society.
440 aft er wo rd

Producing an accurate, well-furnished text of Law in our Society

would be an invaluable contribution. There is a further challenge.
There is a different job of reconstruction that might be done. Ear-
lier I raised the question whether Llewellyn’s “Whole view” rather
than just his “realism” could be subject to rational reconstruction
in the mode of Summers or Leiter.151 My criticism of Leiter was
not intended as a rejection of rational reconstruction. For a well-
qualified philosopher to construct a sound philosophical foun-
dation and justification for a position that has been previously
expressed in less abstract terms can be a valuable exercise. Leiter’s
reconstruction of a philosophical basis of “the Core Claim” of Real-
ism is quite plausible, if controversial: ‘The Core Claim of Legal
Realism consists of the following descriptive thesis about judicial
decision-making: judges respond primarily to the stimulus of facts. Put
less formally – but also somewhat less accurately – the Core Claim
of Realism is that judges reach decisions based on what they think
would be fair on the facts of the case, rather than on the applicable
rules of law.’152
This only thinly describes what individual Realists in fact said;
rather it gives an interpretation of what they should have said in
order to ground their shared views in a tenable philosophical
position. My objection is that Leiter’s interpretation of “the Core
Claim” fails to capture what is most interesting, original, or signifi-
cant about Llewellyn’s contributions to understanding law. Even in
respect of American appellate adjudication the formulation “that
judges respond primarily to the stimulus of facts” reduces a com-
plex way of looking at things to a single proposition. Leiter’s inter-
pretation of the “Core Claim” fits Llewellyn, but in a simplified way.
More important is the point that Llewellyn’s views on American
appellate adjudication are only one aspect of Llewellyn’s idea of
realism. This in turn is only one component of his whole view, which
contains many other interesting theories, sub-theories and ideas.153
A philosophical reconstruction of this whole view would cover all
or nearly all of it in a coherent fashion,154 spell out the connections

151
Above pp. 430–2.
152
Leiter (2007), op. cit., pp. 21–2.
153
KLRM, ch. 9.
154
On the scope of “the whole view” see KLRM, p 171. On whether Llewellyn was
merely an eclectic “bricoleur” see above 427.
 a ft e r wo r d 441

between the parts, identify internal tensions and inconsistencies,

and link the underlying assumptions to recognizable philosoph-
ical position or positions. The task, in short, would be to articu-
late a philosophically defensible interpretation of Llewellyn’s main
ideas. Llewellyn was not a philosopher; he worked at lower levels
of abstraction and often expressed a personal dislike for abstract
philosophizing. There is room for this kind of philosophical recon-
struction within jurisprudence, so long as it does not claim imperi-
alistically to be the only route into understanding law and provided
it is based on careful reading of the texts. I did not attempt this in
KLRM, so there is still a job to be done.
But if Llewellyn is today mainly of historical interest, why bother?
Let us pause for a moment to consider our heritage of Anglo-Amer-
ican jurisprudential thought. Nearly all canonical Anglo-American
jurists of the twentieth century – Hart, Raz, Dworkin, Rawls, Finnis –
and most Europeans have focused on municipal legal systems as the
central, in some cases, the only example of real law. Furthermore,
their assumptions fit the doctrinal tradition of Western academic
law – a focus on what the official or state law says and reasoning
about this and not much else.155 The heritage is unempirical, even
for those who treat law as a species of social institution. One way of
expressing this gets to the root of Hart’s limitations as a jurist: he
conceptualized law in terms of social fact, but refused to take social
facts seriously. He did not explore in depth the institutional nature
of law nor adequately acknowledge that institutions are formed by
their political, social, and economic contexts. Rather he focused
attention on law as a system of rules (later developed by his succes-
sors as “law as reasons for action”) and missed an opportunity to
build a bridge between analytical jurisprudence and empirical legal
studies.156 In the last twenty years or so the models of legal systems
of Hart, his followers, and his main critics are widely perceived to sit
uneasily with forms of law or law-like phenomena with which legal
scholars and practitioners are increasingly concerned: public inter-
national law, regional law, transnational commercial law, religious
law, customary law, and various forms of “soft law”. The main late
155
GJP, pp 5–7.
156
See GJP, pp. 56–60; Nicola Lacey, “Analytical Jurisprudence versus Descriptive
Sociology Revisited” 88 Texas L. Rev. 945 (2006); Frederick Schauer, “(Re)tak-
ing Hart” 119 Harvard L. Rev. 852 (2006) (Review of Lacey (2004)); William
Twining, “Schauer on Hart” 119 Harvard L. Rev. Forum 122 (2006).
442 aft er wo rd

twentieth century jurists who provide an alternative model of legal

ordering, which is both broader and more empirically sensitive,
are Karl Llewellyn and Neil MacCormick.157 It is not possible here
to compare MacCormick and Llewellyn in detail, but both of them
conceive of law in terms of institutionalized ordering, and accept
ideas of nonstate law and legal pluralism; thus they provide some
theoretical framework for viewing and studying legal phenomena
in an era of globalization.158 So far from being of mainly historical
interest, Karl Llewellyn’s central ideas, especially as incompletely
articulated in Law in our Society, are more relevant than ever at the
start of the twenty-first century.
The mission of an institutionalized discipline is advancing and
disseminating knowledge and understanding of its subject matters.
The mission of the discipline of law is advancing and communicat-
ing knowledge and understanding of legal phenomena. What is
at stake here is not the scope and range of these phenomena, but
different conceptions of what is involved in understanding them.
There are clearly many routes to understanding law. Here, the
question is not which is the best, but whether Karl Llewellyn still

157
Neil MacCormick’s final quartet of books, Law, State and Practical Reason, goes
beyond rational reconstruction to a synthesis and development of his own
“whole view” bringing together his philosophical positions (epistemology, eth-
ics, political morality, and logic) and his more specific contributions (e.g., on
sovereignty, nationalism, the rule of law, reasoning and rhetoric, precedent and
statutory interpretation) as a coherent whole. MacCormick is the main mod-
ern legal philosopher to attempt to bridge the divide between analytical legal
philosophy and empirical legal studies. He was familiar with Llewellyn’s main
writings and, although not uncritical, admired his work, especially the law jobs
theory. (see above n.85). Unlike leading sociologists of law, such as Selznick
and Cotterell, but like Llewellyn, MacCormick treated law as his primary disci-
pline and a broad, critical understanding of law as his central concern. Above
n.47. See further W. Twining, “Neil MacCormick”, Procs. of the British Acad-
emy (forthcoming, 2012).
158
This is not to downplay the significance of other thinkers, including Glenn,
Tamanaha, Santos, Sen, and others who have also contributed a great deal to
the broadening of our understandings of law. In Law in our Society Llewellyn
began to develop his own theory of justice, inspired in part by Edmond Cahn
and F. R. Bienenfeld (KLRM 186–5). This is much closer in spirit to Amartya
Sen’s The Idea of Justice (Cambridge, MA: Harvard University Press, 2009) than
to Rawls’ “transcendental idealism”. Sen is, of course, a much more sophis-
ticated moral philosopher than Llewellyn. The interesting question here is
whether this aspect of Llewellyn’s whole view is compatible with the core of
Sen’s theory.
 a ft e r wo r d 443

has a distinctive contribution to make to the enterprise. In order

to avoid unnecessary polemics, let me start with might be consid-
ered a balanced or middle of the road view of what is involved in
understanding law. In an excellent introductory book, John Adams
and Roger Brownsword state that in the context of English legal
education ‘An “understanding” of law is provided primarily by an
ability to conceptualize legal phenomena . . . to account for the
way in which law operates, and to evaluate its operation.’159 The key
point is that understanding law involves all of these and is incom-
plete – indeed, potentially misleading – if the focus excludes any
of these three ingredients: concepts, values, and social facts. On
this simplified view, the central message of realism is that under-
standing law involves studying both the law in books and the law
in action. Llewellyn’s whole view, of which realism is just one part,
is one example of a rounded conception of understanding law
that accommodates multiple perspectives, ethical, analytical, and
empirical concerns and specialized enquiries rooted in a flexible
conception of law as a social institution.

159
John H. Adams and Roger Brownsword, Understanding Law (London: Fontana
Press, 1992). This is an excellent book, which provides a very different model
from “Elements” and The Bramble Bush. Although written by two committed
Kantians, the authors introduce conceptions of law drawn from Hart, Weber,
Llewellyn, and neo-Kantianism as alternative conceptions that are all part of
“understanding law”. As part of this, they distinguish between questions of
law and questions about law, between first-order questions (raising matters
of description, explanation, evaluation, and conceptualization) and second-
order questions “concerning the status of our first-order understanding of law”,
p. 26.
Notes
INTRODUCTION
I Max Rheinstein, obituary of Karl Llewellyn in 27 Rabels Zeitschrift fur
Auslandisches und Internationales Privatrecht, 6o1-5 (I962); cf. Hurst, The
Growth of American Law, passim, esp. ch. I (I 950).
Professor Rheinstein's account has been adopted largely because it
represents the perspective of a distinguished legal scholar who was a
contemporary of most of the leading realists. It is an interpretation of
American legal history from the standpoint of a particular insider, and
it reflects, in a general way, the perspectives of the main protagonists in
our story. A student of economic development, a political scientist
interested in state legislatures, or a black militant could be expected to
select quite different matters for emphasis.
2 Ibid.
3 Cf. Llewellyn on 'the threat of the available,' Jurisprudence, 82-3, dis-
cussed below, pp. 246-7.
4 The Litchfield Law School was a famous private law school which was
established in I784 and which for many years, until its demise in I833,
attracted students from all over America. Many successful lawyers
and public figures were alumni of the school.
5 On the American Law Institute and the National Conference of
Commissioners for Uniform State Laws see, ch. II.
6 Rheinstein, op. cit. (n.I). See generally A. Sutherland, The Law at
Harvard (I967). The treatises of Williston on Contract and Wigmore
on Evidence were particularly influential.
7 Morton G. White, Social Thought in America: the Revolt Against Formalism
(2nd ed.), Beacon (I957). See also B. Crick, The American Science of
Politics (I959); Perry Miller, The Life of the Mind in America (I965);
V. L. Farrington, Main Currents in American Thought (I927-30). For
further references see J. Stone, Social Dimensions of Law and Justice,
ch. 1 (1966). Regretfully in this study I have not been able to draw on
G. Tarello, Il Realismo Giuridico Americana (Ig62).
8 White, op. cit., I3.
9 Ibid., I4; but Holmes, for example, found much to admire in Bentham
and Mill.
IO Ibid., 237.
 no t e s to c h a p t e r 1 445

I LANGDELL'S HARVARD

1 On Langdell, see especially The Centennial History of the Harvard Law

School (1918); Sutherland, The Law at Harvard {1967); Llewellyn,
Jurisprudence, 376--g (1962); Fessenden, 'The Rebirth of the Harvard
Law School', 33 Harv. L. Rev., 493 (1920).
2 On American legal education, see especially A. Hamo, Legal Education
in the United States (1953); R. B. Stevens, Two Cheers for r1J7o: The
American Law Schools Perspectives in American History, 405 (1971).
3 On Holmes see below, pp. 15ff; Frank, Courts on Trial, ch. xvi (1963 ed.).
Frank's first butt was Langdell's colleague Joseph Beale, Law and the
Modern Mind, ch. VIet passim {1930).
4 A Selection of Cases on the Law of Contracts, preface, p. viii ( r871).
5 &cord of the Commemoration ••• on the Two Hundred and Fiftuth Anniversary
of the Founding of Harvard College (1887).
6 Sutherland, op. cit., 175.
7 op. cit. (n.4 above).
8 That this idea became a firm part of the Harvard tradition is illustrated
by an incident involving two of Langdell's followers, Beale and Ames.
In 1902 President Harper of the University of Chicago invited the
Harvard faculty to assist in the establishment of a law school, inter alia
by seconding Beale to act as the first dean. As a condition of cooperation
Beale and Ames insisted that 'only strictly legal subjects' should be
taught by 'a faculty consisting only oflawyers'. This went quite contrary
to proposals made by Professor Ernst Freund, the great pioneer of
administrative law, who was then a professor of political science at
Chicago. Eventually a compromise was achieved, and Beale went as
dean from 1902-4. Comment, 'Ernst Freund, Pioneer of Administrative
Law', 29 U.Chi.L.Rev., 755, 763-70 (1961-2), discussed by Stevens,
op. cit. (n.2 above).
9 llewellyn, op. cit., at 377·
10 Cited above, p. 12.
I I Above, p. II.
12 See below, p. 354·
13 Rheinstein, op. cit., 6o2.
14 14 Am.L.Sch.Rev., 233 (r88o). Cf. Holmes' comment to Pollock on
Langdell's casebook: 'A more misspent piece of marvellous ingenuity
I never read, yet it is most suggestive and instructive ••. to my mind he
represents the powers of darkness ..•. He is all for logic and hates any
reference to anything outside of it and his explanations and recon-
ciliations of the cases would have astonished the judges who decided
them. But he is a noble old swell, whose knowledge, ability and idealist
devotion to his work I revere and love.' as in Holmes-Pollock Letters, 17
{1941 ed. Howe). See also Howe, II, Justice Oliver Wendell Holmes: The
44 6 notes to chap te r 1

Proving rears, I55-9 (I963). Holmes was both an alumnus of Harvard

law school in the pre-Langdell era and taught there during the first
period of Langdell's deanship (I87I-83)· He was elevated to the bench
of the Massachusetts Supreme Court in I883, but continued to maintain
a close interest in the Harvard Law School.
I5 Llewellyn, for instance, published several eulogies of Holmes in which
he scarcely mentioned any of his ideas.
I6 The Common Law, I (I88I); also I4 Am.L. Rev., 233·
I 7 One may infer from the context of the quotation that Holmes did not
intend to deny any place to logic in the law.
I8 Collected Legal Papers, I72-3 (I920).
I9 Ibid., I94-5·
20 Ibid., 198.
2 I Ibid., I97·
22 Ibid., I87.
23 Ibid., I8o.
24 Ibid., I7I.
25 E.g. H. L.A. Hart, The Concept of Law, 55-6 (196I).
26 E.g. ibid., I43·
27 'The Path of the Law', 167.
28 Ibid., 202.
29 E.g. Hart, op. cit., I34-44· Holmes' biographer suggests that 'Holmes
in the beginning, at least, was led toward the prediction theory of law
by an impulse more critical than philosophical'. When he first em-
phasised the predictive element in law, in lectures at Harvard in I872,
he was mainly concerned to criticize Austin's command theory, by
showing that law looked different from the standpoint of a practitioner
advising his clients. Howe, I I, Justice Oliver Wendell Holmes: The Proving
rears, 75 (I963)·
go This is not to deny a connection between legal philosophy and legal
education; indeed, their interaction is too often overlooked: a coherent
theory of legal education presupposes some general conceptions about
law and some legal theories have been stimulated, at least in part, by
puzzlements about probleiOS of legal education. It is doubtful whether
a consistent and rounded philosophy of law can be extracted from
Holmes' various pronouncements; it seeiOS that the importance Holmes
attached to the conception of 'the bad man' and prediction of judicial
decisions was closely connected with his desire to persuade law students
to identify with private practitioners. As Howe suggests, op. cit., 75-6,
he may have been gratified to find that talking of law in teriOS of
prediction had led him to a position compatible with the prevailing
philosophy of science, but it is unlikely that philosophical concerns
led him to this position.
3I Much of Holmes' attitude to legal education is summed up in a much
 no t e s to c h a p t e r 1 447

quoted dictum: 'I say the business of a law school is not sufficiently
described when you merely say that it is to teach law or to make lawyers.
It is to teach law in the grand manner, and to make great lawyers.'
'Use of Law Schools', Speeches, go (1913).
32 For discussions of Gray, see The Centennial History of the Harvard Law
Schoolz8z7-1917 (1918); John Chipman Gray (1917); L. Fuller, The Law
in QUISt qf Itself, 48--55 (1940, Beacon ed. 1966); Cross, Precedent in
English Law, 152-5 (2nd ed. I968); Hart, The Concept of Law, I37-44
(I961).
33 An impression of Gray's reputation and standing with the legal pro-
fession can be gained from a passage in The Centennial History of the
Harvard Law School. 'Gray eventually became a convert to the case
system at the time when Langdell's method was meeting with much
opposition among practitioners. He was most valuable in convincing
the bar of Boston that there must be something in the new fangled way
of doing things or Gray would not have believed in it. The fact that a
practical man, not only interested in scholarly things, not only interested
in what the law had been or was going to be or ought to be, but also
interested in what it was and now happened to be - that such a man
believed in methods of teaching and administration that were being
adopted, counted for much'. Op cit., 21 I. For a typically lucid discussion
by Gray of case teaching, see I, rate L. ]., I5g--6I (I8g2). Gray's
conceptions of treatise writing can be gleaned from the Preface to
The Rule Against Perpetuities: 'Such a book should deal with the whole
of its subject, its history, its relation to other parts of the law, its present
condition, the general principles which have been evolved and the
errors which have been eliminated in its development, and the defects
which still mar its logical symmetry, or what is of vastly greater moment,
lessen its value as a guide to conduct.'
34 Gray to President Eliot, 8 January I88g, quoted in Howe, II, JustKe
Oliver Wendell Holmes: The Proving rears, I58 (I963).
35 First published Boston I886.
36 First published Cambridge 188~2, 6 vols.
37 First published New York 1909 (Carpentier Lectures, Columbia
University, 1908). Citations below are from the Beacon Press edition
(ed. Roland Gray) (I963).
38 Holmes to Laski, 4 January I925, I, Holmes-Laski Letters (ed. Howe),
6g3 (I953)·
39 Ch. IV et passim. Gray repeatedly quotes in support of his position a
passage from a sermon by Bishop Hoadly: 'Nay, whoever hath an
absolute authority to interpret any written or spoken laws, it is he who
is the law giver to all intents and purposes, and not the person who first
wrote them.' Benjamin Hoadly, Bishop of Bangor, Sermon preached before
thl King, I2 (1717). As Patterson points out, Gray's argument leads him
44 8 notes to chap te r 1

'to the curious position that the rules laid down by a court in deciding
a case are "the law" for that case but are only sources of the law for "the
next case".' Jurisprudence, 2 1o ( 1953).
40 p. 84. This is not very different from Salmond's phrase 'the rules
recognised and acted on in courts of justice'. However, Gray was
anxious to deny that law pre-existed judicial decisions. Curiously,
for one who is sometimes categorised as a 'realist', Gray concentrated
on explicit judicial statements ('rules laid down by the courts'-cl:,
however, p. 1, where he uses the phrase 'the general rules which
are followed') rather than on actual judicial behaviour ('what the
courts do in fact'). This seems to have led him to gloss over possible
discrepancies between what judges say and what they do and, more
surprisingly, to ignore in his long discussion of precedent the difficulties
of determining the ratio decidendi of a case.
41 For critical discussions see, e.g., Cross, Fuller, Hart, op. cit. supra, n.32.
42 Gray liked to test theories in 'the hard pan of fact' and this may be one
reason why he is often called a 'realist'. Moreover, apart from his
general sturdy common sense, there are some specific aspects of The
Nature and Sources of Law that may have led people to link him to the
realist movement. For example, his emphasis on judicial law-making;
his argument that on many points the legislature had 'no real intention'
( 172); and his dismissal of the theories he attributed to Austin, Savigny,
and Carter on the grounds that they did not 'fit the facts'. He appears
to have thought that he had sufficiently disposed of Austin's theory of
sovereignty by pointing out that in practice '(t]he real rulers of a political
society are undiscoverable' (79); he dismissed Savigny's proposition
that law has its existence in the common consciousness of the people
(the Volksgeist) on the ground that a major part of the law is unknown
to the people and that the opinions of jurisconsults, to whom Savigny
assigned the role of interpreters of the Volksgeist on matters of detail,
do not in practice represent the Volksgeist. Per contra, it is arguable that
Gray emphasised only two of Llewellyn's nine 'starting-points' of
realism (seep. 79), that his ideas on legal education and legal research
were closer to those of Langdell than to those of Corbin, Cook, Llewellyn
or Frank, and that his theoretical ideas were in several respects more
orthodox than those of Holmes (e.g. he discounted the prediction
element). It is not important whether or not Gray is classified as a
'realist', but for present purposes it is worth emphasising that historicallY
he seems to have contributed less to the rise of the realist movement than
is commonly supposed.
43 (1917), 3 A.B.A.]., 55; also in 27Int. Jo. Ethics, 150 (1917), 22 Pa.B.A
Rep., 221 (1916).
44 8 Col. L. Rev., 6os {tgo8).
45 57 H.L.R., I (1943).
 no t e s to c h a p t e r 1 449

46 44 Am. L. Rev., I2 (I9IO).

47 I9 GrHn Bag, 6o7 (Igo7)•
,..S 'Liberty of Contract', I8 Tale L. ]., 464 (Igog).
49 Jurispruderwe, 496 (I96o); cf. ibid., 7-8n (1930). There is a good discussion
of Pound and legal realism in Rumble, Amwican Llgal Realism, ch. I
(I968).
50 Pound's phrase: e.g. 'The Need for a Sociological Jurisprudence', I9
Gmn Bag, 6o7, 61 I (I907).
51 A number of people have commented on Pound's failure to inspire.
Holmes confided to Laski in I924: 'I always blow Pound's hom. I
admire and am overwhelmed by his learning, but I rarely find that
unexpectedness which as you say is the most attractive thing. It worries
me to think that perhaps or probably I don't do him justice, but few
of his own thoughts about the law seem to me important contributions'
(Howe (ed}, I, Holm~s-lAski Llttlrs, 651); Laski replied in similar vein
(ibid., p. 655). Llewellyn noted that there was little sign of direct
influence by Pound on contemporary jurists, except on Felix Frankfurter,
and possibly to a lesser extent on Cook: 'Cook, Corbin, Moore, Oliphant
and Clark ... all derive heavily from Holmes. None, save for the early
association of Cook already mentioned, draws in any important measure
on Pound. Rather, already set in their views, did they go back over
Pound's work critically, accepting here, rejecting there, in the light
of their own thinking. Obvious, although not conclusive, evidence is
the almost total absence in the writings of any of them of Pound's
vocabulary' (Llewellyn MS; unused footnote for 'Some Realism about
Realism', I930).
52 Sutherland, Th4 Law at Harvard, 250 (I967). For a revealing defence of
Pound's cautious approach to 'new devices' in terms that suggest that
Harvard had no need to innovate, see Sayre, Th4 Lift of Roscoe Pound,
231-3 (1948).
53 Llewellyn, Jurispruderwe, 378. One of the striking features of Sutherland's
substantial history of Harvard (op. cit., n.52) is that the teaching of
jurisprudence is only mentioned incidentally in a very few places.
54 Pound, 'Classification of Law' reprinted 37 Harv. L. Rev. 933 (1924).
55 Pound's thesis for a doctorate in botany of the University of Nebraska,
published in revised form as Pound and Clements, Phytogeography of
Nebraska ( I8g8). Sutherland, writing of Pound's Outlines of Jurispruderwe
(Ist ed. 1903), comments: 'One interested in Pound's intellectual
tendencies does well to consider the nature of this book. It suggests his
Phytogeography qf Nebraska; it is a book of scientific ordering, of minutely
detailed nomenclatural terms. Here is a botanist, explaining the
taxonomy and nomenclature of justice' (op. cit., 237).
56 Op. cit., n. 54·
57 See below, p. 70 et seq.
45 0 notes to chap te r 2

58 E.g. Llewellyn, ]urisjJt'ufltme, 7-8n, 496; Oliphant, 'Parallels in the

Development of Legal and Medical Education', 167 Annals, 162 (1933).
Frank, in a lengthy discussion of Pound's views on certainty in law,
concludes that Pound is either inconsistent or else too readily takes
refuge in vague generalities to break free from 'the myth of certainty'
and other prejudices of the legal profession. In short, he viewed him
as a conservative lawyer masquerading as a radical jurist (Law and the
Modern Mind, part II, ch. 1, appendix XIV et passim). One of Llewellyn's
more generous assessments is to be found in Law in our SocieV> (MS):

Unique: Roscoe Pound, attempting to gather, to winnow, and to somewhat

organize the wheat. A sort of incarnation of our case-law system at its best:
not tied down to any theory beyond where it proves useful; an earthy willingness
to pick up a good idea wherever one turns up; a hesitancy about pressing any
theory over-far; a fiat unwillingness to even try to get it all into a single
logico-systematic scheme - working, instead, by areas. The weakness has been
a drawing back from wrestling with the details of the daily work; I think,
because Pound did not have the 'craft' concept to work with.
59 Arnold, Fair Fights and Foul (1965). This should not be read as suggesting
that Arnold was dissatisfied with Harvard Law School when he was a
student. His 'revolt' came later (ex. rei., Professor Clarence Morris).

2 CORBIN'S YALE
1 'Some Realism about Realism', Llewellyn, ]urisjJt'ufltme, 42,46-8 (1931),
discussed below, ch. 5·
2 29, Tale L. ]., 83-4 (1919); on the Yale Law School, see F. C. Hicks,
The Tale Law School (4 pamphlets, 1935-8).
3 The principal sources for this account of Corbin are (i) Corbin, 'Sixty-
Eight Years at Law', 11, Tale Law Report, no. 3, 20 (1965); (ii) Corbin,
'A Creative Process', 6, raZe Law Report, no. I, 17 (1959); (iii) personal
interviews and correspondence with Corbin 1963-5.
4 On the 'Yale system', see F. C. Hicks, Tale Law School: 1895-1915 The
Tears of Hendrie Hall, 43 et seq (1938).
5 1, Tale Law Report, no. 4, 5 (1955).
6 Ibid., 6.
7 Corbin to Llewellyn, 1 December 1g6o; elsewhere Corbin added:
'Fortunately, most of my legal opponents were equally incompetent'
('Sixty-Eight Years at Law').
8 E.g. 'Karl [Llewellyn] started with Sumner; Hohfeld started with
Austin; Corbin started with neither. To me, Austin was merely a name'
(Corbin to Twining, October 1965).
9 Ibid.
IO Tale Review, 234-50 (1914).
 no t e s to c h a p t e r 2 451

II Op. cit. above (n.3). See also, 'What is the Common Law?', Am. L. Sch.
Rev., 73 (1912); 'Jural Relations and their Classification', 30 Tale L. ].,
226 (1921); 'Legal Analysis and Terminology' 29 Tale L. ]., 163 (1919),
'The Restatement of the Common Law by the American Law Institute';
15 Iowa L. Rev., 19 (1929); review of Allen, Law in th4 Malcing, 38 Tale
L. ]., 270 (1928).
12 In 1963 the author visited Corbin at his home in Hamden in order to
interview him about Llewellyn. By then Corbin was nearly go; his
hearing was impaired and he could only read with considerable effort.
He had just completed work on a supplement for his monumental
treatise on contracts. Beside his chair was a box of manilla cards on
which each new decision affecting contracts was noted with care in
longhand as the advance sheets came in. In the previous six months,
Corbin said, he had noted approximately two thousand cases in this
fashion. Long after most scholars would have handed over such
'mechanical' work (Corbin would have rejected this description of it)
to younger men, he had ploughed on relentlessly and only stopped when
it became a physical impossibility to continue. This patient, careful,
relentlessness was Corbin's cardinal virtue.
13 '[T]he rules of action customarily followed in the community, lately
referred to by Lord Chancellor Haldane as Sittlic/Wit' (240). Cf. 'A
man who knows the Sittlic/Wit, the justice, of his time, and who knows
also that his own interest and the interest of all that he holds near and
dear require him to decide in exact accordance therewith. . . . Such a
judge is independent. . . • It is, indeed, a high and arduous task to
acquire the knowledge necessary to such independence; for to know
the Sittlic/Wit requires that one must know in advance the amount
of criticism his decision will provoke, the number and the character of
the threats that will be made and carried out, the volume of the clamor.'
Ibid., 249-50. The term 'mores' was made fashionable by William
Graham Sumner, who was prominent at Yale during Corbin's early
years there - see below, p. 92.
14 P. 250. See below pp. 223-6.
15 To take two examples. 'What is the test of right and wrong, of truth and
error, of sound law and bad law? The final test is survival in conflict.
The fittest survive' {247). Or the following overstatement of the scope of
judicial discretion: 'The fact is that the judge is a laWTI'Ulker. He acts under
no compulsion different from that under which anyone else acts when
making any kind of a decision. . . . The judge's will is as free as the
banker's will or the will of the hoinicide' (235). Cp. Llewellyn on leeways
of discretion and their liinits in The Common Law Tradition, 1gff.
I6 P. 249·
17 'Sixty-Eight Years at Law', 20. Corbin's method of testing 'tentative
working rules' did not correspond with the simple model of induction
45 2 notes to chap te r 2

in which a generalization is based on consideration of all known

instances. For Corbin pointed out that, as conditions and values
changed . • • 'precedents have been forgotten, have been disregarded
and evaded, have been flatly disapproved and overruled ('The Law
and the Judges', 242). It should be noted that Corbin talks in terms of
rules as 'generalizations' which can be 'induced'. By so doing he does
not necessarily commit himself to equating normative propositions
(such as rules) with descriptive propositions, for it is widely accepted
that it is meaningful to talk of 'inducing' rule8 from a series of cases.
Considerations of space preclude a full analysis here. A simple answer
is that it is the fact element in the legal rule (the protasis) which is the
subject of 'generalization'. On Llewellyn's distinction between 'real
rules' and 'paper rules', see below Appendix B.
18 Corbin to Llewellyn, 1 December 1g6o.
19 See below, p. 4o8.
20 See below, ch. 10 and pp. 31&-7.
21 P. 246. To the modern sociologically minded jurist this view may seem
rather naive. Cf., for example, Kahn-Freund, writing on the experience
of the Royal Commission on Trades Unions and Employers' Associa-
tions: 'Once more (as so often) those of us who are lawyers were taught
the elementary lesson that the law reports are the worst possible mirror
of society. They convey to the beholder a distorted image in which that
which is marginal appears as typical, and this may be one of the reasons
why sometimes the judgments of lawyers on social policy are so sur-
prisingly warped and ill-founded'. 33 M.L.R., 241, 242 (1970).
22 P. 245, quoting a letter from Kent to a correspondent (1828). Llewellyn,
in developing this idea, rejected the crude version that judges first
make up their minds on a hunch and then seek for an e:JC post facto
rationalization for it. This to him was as naive an oversimplification
of a complex process as the view that judicial decisions simply involve
the application of rules to facts (see generally, The Common Law Tradition,
passim).
23 Professor Simeon Baldwin (184o-1927), a leading figure in the Yale
Law School for over fifty years, and the staunchest defender of the
'old Yale system' of instruction; see Hicks, Tale Law SchoolrlJg§-1915,
63-85.
24 Corbin, interview, 1963.
25 Langdell, cited above, p. 11.
26 In 1917, at the end of the first year of Swan's deanship, several members
of the faculty resigned because they felt that 'the ideal of the new admin-
istration was actually to convert and transform the Yale Law School
into a sort of replica of the Harvard Law School'. C. P. Sherman,
Academic Adventures, 193 (1947).
27 W. N. Hohfeld (1879-1917); his most important papers were collected
 no t e s to c h a p t e r 2 453

in Fundamental Legal Conceptions as Applied in ]udieial Reasoning (ed. W. W.

Cook, 1923; shorter ed. with a foreword by A. L. Corbin, 1964). On
Hohfeld's ideas, see Stone, Legal System and Lawyers Reasonings, ch. 4
( 1964), and references to the extensive literature cited there. On Hohfeld
as a teacher, see Llewellyn Jurisprudenee, ch. 26- an appreciation written
while Llewellyn was still a student at Yale. This was originally published
in 28 Yak L. ]., 795 (1919). See also lecture dated 26 April 1955,
K.L.P.C. Series M. 10.
28 Op. cit. (n.27), foreword.
29 Ibid., 64.
30 See Stone, op. cit., 161.
31 Corbin's account is of interest:
When, in 1923, Williston was made Reporter on Contracts by the American Law
Institute, he chose me as his chief adviser (not so named) and eventually as a
'Co-Reporter'. As such adviser, I worked over every Section of the Restatement,
submitting alternative drafts of Sections, Comments and Illustrations. Williston
chose Oliphant also as an adviser; and he expressly told us two that he accepted
Hohfeld's classification of crm&epts, though not every one of Hohfeld's tmns
(especially 'liability') and that he wished every part of the Restatement to be
consistent with Hohfeld. He singled out Oliphant and me, as being more expert
in Hohfeld's analysis than himself, to keep out a constant eye for any incon-
sistency. Oliphant, without raising any controversy, tired of the job and
resigned within two years. I saw it through to the end. Williston welcomed
every criticism and suggestion, adopting the forms and suggestions if they with-
stood full discussion. I regarded my function as supplementing Williston in
two ways: (1) Analysis of facts and terminology; (2) The modernization of
doctrine to accord with the evolutionary process.

Corbin to Twining, October 1965. Bigelow also adopted Hohfeld's

analysis in his preliminary work on the Restatement of the Law of Property,
Corbin, foreword to Hohfeld, op. cit. (n.27).
32 See below, pp. 137 and 331.
33 According to Corbin, Hohfeld acquired a copy of Austin when he was a
college student in the University of California (Corbin to Twining,
1g65). This copy, heavily annotated, is in the library of the Yale Law
School.
34 This is not to say that Austin was the prime target of Corbin, Cook and
Llewellyn (see above, p. 29).
35 Llewellyn, lecture, 26 April 1955, K.L.P.C. Series M. 10.
36 Hohfeld, Fundamental Legal Conceptions 357 et seq. (1923).
37 Ibid.
38 W. W. Cook (1873-1943), after graduation from Columbia in 18g4,
was first an assistant in mathematics at Columbia (1894-5), then a John
Tindall Fellow in physics at Jena, Leipzig and Berlin (1895-7); on his
return to the United States he continued as an assistant in mathematics
45 4 notes to chap te r 2

until 1goo. However, in 1901 he earned a master's degree in law and

immediately took up law teaching. Goebel et al., A History of the Sclwol
of Law, Columbia University, 262-3 (1955). See also Llewellyn lecture,
9 May 1955, 16-8, K.L.P.C. Series M. Cook's writings include 1M
Logical and Legal Bases of the Con/liet of Laws (1942), 'Scientific Method
and the Law', 13 A.B.A.]., 303 (1927), Johns Hopkins Alumni Magazine,
vol. 25, 213-36 (1927), 'Hohfeld's Contributions to the Science of
Law', 28 Tale L. J., 721 (1919), and an essay in Kocoureck (ed.), My
Philosophy of Law (1941), at 4g-66.
39 Goebel, op. cit., 263. A warmer assessment of Cook's character is to be
found in obituary notices by Homer F. Carey and Hessel Yntema in 38
Ill. L. Rev., 347 et seq. (1944).
40 Ibid.
41 See especially 'Scientific Method and the Law'.
42 'My Philosophy of Law', 52-3.
43 'Scientific Method and the Law', 232.
44 Ibid., 229-30, supported by a quotation from Beale.
45 Ibid.
46 In discussing critics of 'mechanical jurisprudence' Dworkin points out:
'. . . they are right in ridiculing its practitioners. Their difficulty, how-
ever, lies in finding practitioners to ridicule. So far they have had little
luck in caging and exhibiting mechanical jurisprudents {all specimens
captured- even Blackstone and Joseph Beale- have had to be released
after careful reading of their texts).' 'Is Law a System of Rules?', in
Summers (ed.), Essays in Legal Philosophy, 27 (1968).
47 W. W. Cook, 1M Logical and Legal Bases of the Corifliet of Laws, passim
( 1942).
48 Corbin saw this as Cook's Achilles heel: '[H]e planned to start at
Johns Hopkins a legal research institute, quite separate from law
practice, one that would parallel the great Medical School atJ.H....
Apparently Cook failed to realize that the great Medical School atJ.H.
was closely connected with and dependent upon medical practiee, and
that the great medical leaders there had been active practitioners.
Cook had never practised law.' Corbin to Twining, October 1965.
49 Yntema, op. cit. (n.39); Cheshire, Private International Law, 34-5 (6th ed.
1961).
50 See below, p. 81.
51 Austin Scott (1925), 3 Proc. Am. Law Inst., 230; denied by Cook in 1M
Logieal and Legal Bases of the Con{liet of Laws, 47.
52 Ibid., and 'My Philosophy of Law'.
53 Unlike Moore (see below), Cook did not consider that his early analytical
work was based on 'false hypotheses'. Rather he considered that his
analysis of legal decisions and his statistical enquiries into judicial
administration were both examples of 'scientific empiricism' applied
 no t e s to c h a p t e r 3 455

to the study of 'legal phenomena'. See e.g. The Logieal and Legal Bases
of the Conj/~t of Laws, 46-7. While he did not commit himself to the
view that identical methods were appropriate to both types of enquiry,
by failing to differentiate clearly between different types of 'legal
phenomena', Cook failed to give an adequate account of the difficulties
of treating judicial decisions simply as empirical phenomena. See,
further, below (n.56). Cook accepted Dewey's somewhat controversial
'empirical theory of evaluation' (see 'My Philosophy of Law', 6o-4).
54 20 Col. L. Rev., 716 (192o); 21 Col. L. Rev., 395 (1921).
55 33 Ill. L. Rev., 497 (1939).
56 A critique of Cook's theory of an empirical science of law could be
developed along three main lines: first, his dismissal of 'mechanical
jurisprudence' was far too facile (see above (n.46)). By choosing a sim-
plistic target for attack, he failed to come to grips with less naive
versions of 'formalism'. The alternative theory that he proposed was
hardly less simplistic. Secondly, following Holmes, he accepted un-
critically the idea that statements of the kind 'X has a duty' are simply
predictions; accordingly he glossed over some of the problems of
developing an empirical science in a field in which normative proposi-
tions (e.g. rules) have a central place. See Hart, 'Definition and Theory
in Jurisprudence', 70 L.Q_.R., 37 ( I954) and The Concept of Law, ch. VI.
Thirdly, as suggested above (n.53), he failed to give an adequate account
of what he considered to be valid methods of investigating various
types of 'legal phenomena'.
57 Corbin to Twining, October I965. Goebel, op. cit., 263, says that Cook's
salary of $Io,ooo a year was 'higher than the salary paid at that time
to any other law teacher anywhere'. However, Dean Stone's salary was
probably higher in 1919. Mason, Harlan Fiske Stone (I956).

3 COLUMBIA IN THE 192o's

I The principal sources for this section are: (i) J. Goebel et al., A History
of the School of Law, Columbia Universiry (I 955); (ii) Reports of the Dean
of the Law School, Columbia Universiry (annual, I925-38); (iii) unpublished
memoranda etc. in the Treasure Room of the University of Columbia
Law School (permission was refused to consult faculty minutes and
other Columbia records); (iv) H. Oliphant (ed.), Summary of Studies in
Legal Education by the Faculry of Law of Columbia Universiry ( I928); (v) B.
Currie, 'The Materials of Law Study,' I and II, 3]o. Leg. Ed., 33I (I95I),
III, 8 Jo. Leg. Ed., I (I955); (vi) A. T. Mason, Harlan Fiske Stone, ch. 9
(I956); (vii) The Karl Llewellyn Papers which, however, contain
relatively little material relating to the principal events dealt with in
this chapter.
2 See generally Goebel, op. cit., I 1-25.
45 6 notes to chap te r 3

3 The best account of Moore's career up to 1929 is to be found in Goebel,

op. cit., 249-52, which is the main source of this passage. See also
Columbia University, School of Law, Alumni Associmion Bulletin of
May 22 1929, and obituaries by William 0. Douglas, 59 Tale L. ]., 188
(1950) and Charles E. Clark, ibid., 191. Moore's most important
writings are to be found in Kocourceck (ed), My Philosophy of lAw,
203-25 (1941), 23 Col. L. Rev., 6og (1923), 38 Tale L. ]., 703 (1929),
various articles in the Tale Law Journal, 1929-33, and the famous article
on 'Law and Learning Theory' with Callahan in 53 Tale L. ]., 1 (1943).
Moore's papers are deposited in the university library at Yale. See also
Northrop, The Comple;rity of Ethical and Legal Experience, 29-34 (1959).
4 Columbia Alumni Association, Bulletin, op. cit., p. 4 (n.1).
5 Especially J. Watson, Psychology from the Standpoint of a Behaviorist (1919).
6 Goebel, op. cit., 251. Currie reports Llewellyn as telling a siinilar story.
No date is given for the event in these accounts, but it is unlikely to
have been before 1922 when the second edition of his Cases on the Law
of Bills and Notes (with Howard L. Smith) appeared. In fact Moore
continued to publish occasional relatively 'conventional' writings in
the area, e.g. his introductory book on The Law of Commercial Paper
(1929)·
7 'At the summit of his teaching career he turned his back upon classroom
success for research of the most extensive and persistent character and
of the most novel kind for any law teacher of our age. His further
teaching - and, of course, it was still extensive - was geared entirely
to his conception of law as determined by facts and as being itself an
"artifact", and to his fiery crusade to follow what he believed to be the
scientific approach to the aScertainment of the institutional background
that shapes and indeed was our law. Hence he set hiinself, with a staff,
to the most detailed and laborious investigation of limited areas of
social or business activity to determine the precise impact of actual
happenings upon the course of law. Nor would he allow anything to
deter him from his dedicated task, not even the almost universal doubts
and questionings, not to speak of more ribald comments, of his compeers
in the legal world'. Clark, 59 Tale L. ]., 191 (1950).
8 See below, pp. 47-8.
9 See below, pp. 136-7. The 'narrow categories' idea was in part inspired
by Hohfeld's analysis.
10 See below, pp. 216ff.
11 See Goebel, op. cit., 265-7, Reuschlein, Jurisprudence: Its American
Prophets, 28o-7 (1951).
12 6 AALS Handbook, 52-3 (1928).
13 14 A.B.A.]., 71 (1928) criticized by Llewellyn on a number of occasions,
e.g. The Common lAw Tradition, 140, 18. Perhaps Oliphant's most
 no t e s to c h a p t e r 3 457

important work, apart from his Cases on Trade Regulation (1923), was
his research at Johns Hopkins, cited below, p. 404.
14 Mason, op. cit., 128.
15 Ibid., 131ff.
16 Goebel, op. cit., 299, 493·
17 Ibid.
18 Currie, III, 5·
19 Smith to Stone, 3 May 1921, quoted by Mason, op. cit., 128.
20 Currie, I, 333-4·
21 Goebel, op. cit., 300.
22 See generally Oliphant's Summary, chs. 8 and 9· Twining, O'Donovan
and Paliwala, 'Ernie and the Centipede', in J. A. Jolowicz (ed.),
Division and Classification of the Law, 1o-29 (1970).
23 Oliphant, Summary, the, 71.
24 Ibid., 75·
25 Currie, III, 74·
26 'Legal Education for Public Policy', 52 Tale L. ]., 255 (1943).
27 Oliphant's Summary is nearly two hundred pages in length. It was
published in 1928 and circulated to all member schools of the A.A.L.S.
In form it represents an attempt to produce a reasonably coherent
statement out of the written and oral contributions of his colleagues.
This was a virtually impossible task, for the contributions varied greatly
in quality, several important phases of legal education were ignored or
only touched on lightly, and there were fundamental differences of
opinion in respect of objectives. Furthermore, the document reflects
Oliphant's personal biases and interests: for example jurisprudence,
comparative law and international law are only mentioned cursorily, a
disproportionate emphasis is placed on business studies, and there is an
almost complete lack of historical perspective. Moreover, some import-
ant disagreements were never resolved. The result is that the document
fails to fulfil its promise to be a coherent statement of a comprehensive
theory of legal education, comparable to Lasswell and McDougal's
Legal EdU&ationfor Public Policy, published fifteen years later. Neverthe-
less it contains a rich brew of ideas; in particular the discussion of
classification, the critique of the case method from the standpoint of a
social scientist, and some of the chapters on individual subjects still
repay study.
28 Currie, I, 334-5·
29 Goebel, op. cit., 297-303.
30 Oliphant, Summary, 20.
31 Ibid., 21.
32 Ibid., 22-3.
33 The most authoritative source on the deanship crisis is the Columbia
45 8 notes to chap te r 4

History, 303-5. The reader is left in no doubt about the sympathies of

the editors.
34 At 304-5.
35 At 23.
36 Generalizations about either of these groups should be read subject to
a number of caveats. First, these were by no means two close-knit
and constant factions regularly opposed to each other over a whole
series of issues. The record of the positions taken by each individual is
in any case by no means complete, but it is clear that the extent and
degree of commitment to any position varied from person to person
and from time to time. Second, this categorisation would be a serious
oversimplification if it were taken to suggest that the scientists were
opposed in general to the idea of professional training or that the
prudents did not appreciate the relevance of empirical research or that
all or any were indifferent to questions concerning the ends of law.
At best one or othet of these suggestions might be a half-truth if applied
to a particular individual. To take but one example: Michael and Adler
were later to accuse some Scientists of 'raw empiricism' (Crime, Law
and Social Science, 422-3 (1933)), and were accused in their tum, by
Llewellyn, of moving towards a 'crude rationalism' (34 Col. L. Rev., 277,
at 284, 291 (1934)) in their emphasis on the need for a 'rational science'
of criminal law based upon the principles of ethics and politics (op. cit.,
preface, p. xili). It requires only a nodding acquaintance with the work
of, e.g., Jerome Michael, to realize that any such accusations in each
case would need to be qualified considerably and that neither could be
neatly categorised as Philosopher, Scientist, or Prudent. The same would
apply in varying degrees to each of their colleagues in 1928. Highly
intelligent and individualistic men such as these cannot be so simply
pigeon-holed. No one better illustrates the complexity of the actual
situation than Llewellyn himself, who probably learned most from the
Scientists, and sympathised with many of their ideas, but as will be seen
ended up firmly in the camp of the Prudents.
37 Columbia University Law School, Dean's Reports, 1928ff.; Goebel,
op. cit., ch. XIII-XIV.

4 AFTERMATH OF THE SPLIT

1 See especially Reports of Dean, Columbia Law School, particularly
for 1933 and 1937; Goebel, op. cit., and Currie, op. cit.
2 Goebel, op. cit., 311.
3 Ibid., 331, citing Dean's Report for 1937.
4 See Currie, passim, for a very full discussion. On Llewellyn's casebook
see below, ch. 7·
5 Goebel, op. cit., 336-7.
 no t e s to c h a p t e r 4 459

6 Dean's Report, I933·

7 Generally see A. Schlesinger, The Age of Roosevelt: The Coming of the
New Deal ( I959); Thurman Arnold, Fair Fights and Foul ( I965); Rumble,
American Legal Realism, 76-7 (I968).
8 See below, p. I94·
9 See Llewellyn, 8 Jo. Leg. Ed., 399, 40I-2 (I956); Goebel, op. &it., 333-4·
IO Op. cit., III, 4·
I I Ibid. I, 337·
I2 Ibid. I, 338.
I3 No student of American legal education, or of realism, can afford to
ignore Currie's masterly articles. They provide the balance and the
historical perspective lacking in Oliphant's Summary. Only on three
related points does the present interpretation diverge significantly from
his, and these are on matters of emphasis. First, Currie somewhat
underplays the depth of the split that developed between the two chief
factions at Columbia. Secondly, and related to this, he may have
accepted too readily the judgment of their contemporaries that the
efforts of those who left Columbia for Johns Hopkins and Yale were
inevitably doomed to failure. Thirdly, as an American law teacher,
Currie is less inclined than an outsider to question the assumption that
the casebook or 'course book' was the best vehicle for furthering the
integration movement.
I4 On Johns Hopkins Institute, see (i) Johns Hopkins University Bulletins,
I928--33; (ii) Johns Hopkins Institute of Law Bulletins; (iii) Albert Shaw,
'Research in Law and Justice', Review of Reviews, I93I; (iv) Cook,
'Scientific Method and the Law', Johns Hopkins Alumni Magaz;ine,
March I927 (reprinted I 3 A.B.A.]., 303 ( I927)); (v) H. Yntema,
'Walter Wheeler Cook', 38 Ill. L. Rev., 352 (I944); (vi) Johns Hopkins
Institute of Law, MoMgraphs in the Study of Judicial Administration in Ohio,
I93I-6 (I3 monographs).
I5 Johns Hopkins University Report, I928--g at 423.
I6 Ibid., 424·
I7 Ibid., 425-7.
I8 Johns Hopkins Institute of Law, General Statement ( 1928).
19 W. W. Cook, The Logical and Legal Bases of the Conflict of Laws (1942).
20 Publications of the Institute of Law of The Johns Hopkins University
included: MoMgraphs in the Study of Judicial Administration in Ohio ( I932);
Bulletins of the Study of Judicial Administration in Ohio (I932); MoMgraphs
in the Study of the Judicial System of Maryland (I931-2); Bulletins of the
Study of the Judicial System of Maryland {I931-2); MoMgraphs of Survey
of Litigation in New Tork (I93I-2); Bulletins of Survey of Litigation in New
Tork {I931-2); Yntema, Analysis of Ohio Municipal Court Acts (I933);
Marshall, Unlocking the Treasuries of the Trial Courts (I933); Comparative
Judicial Criminal Statistics: Six States, 1931 (I932); Comparative Judicial
46 0 notes to chap te r 4

Criminal Statistics: Ohio and Maryland (1932). For a full bibliography of

the johns Hopkins studies see unpublished dissertation by Wilfrid E.
Rumble Jr., 'The Foundations of American Legal Realism' (Dept of
Political Science, Johns Hopkins University).
21 Oliphant, A Study of Day Calendars (Baltimore, 1932); J. H. I., Statistical
Studies in Judicial Administration (Baltimore, 1932).
22 Yntema gave the following explanation:

There was indecision in the University counsels, inspired by malice abroad as

well as by doubts within, and the decision by the faculty of the Institute to
concentrate in the field of judicial statistics, a necessarily expensive form of
research, though it appeared at the time essential in view of the increasingly
stringent situation, appears in retrospect to have fallen short of the more basic
objectives in view. But those were merely incidental to the prime difficulty-
the circumstance that the venture took place on the eve of the depression.
(g8Jll. L. R., 352 (1944)).

See also A. Conard (ed.), Report of Conferenu on Aims and Methods of

Legal Research (1955) for comments of Llewellyn (10-4) Yntema (72-3)
and Cavers (22).
13 Goebel, op. cit., 305.
14 Tale Law School: Annual Report of the Dean, 33 (193o-31). See further
(below, pp. 188££).
15 See especially Clark, Douglas and Thomas, 'The Business Failures
Project- A Problem in Methodology', 39 Tale L. J., 1013 (1930).
16 See Clark and Shulman, A Study of Law Administration in Connecticut ( 1937).
17 Hutchins and Slesinger, 'Some Observations on the Law of Evidence-
the Competency of Witnesses', 37 Tale L. J., 1017 (1927); cf. 16 Tale
Rev., 678 (1927); 28 Col. L. Rev., 432; 38 Tale L. J., 283 (1928), 41 Harv.
L. Rev., 86o (1928). For other references see Yale Law School, Dean's
Reports, 192g-35.
18 Moore and Sussman, 'Legal and Institutional Methods Applied to the
Debiting of Direct Discounts', 40 Tale L. J., 381, 555, 752, 928, 1055,
1219 (193o-31). Moore, Sussman and Brand, 'Legal and Institutional
Methods Applied to Stop Payments of Checks', 42 Tale L. J., 817, 1198
( 1933)·
29 Moore and Callahan, 'Law and Learning Theory', 53 Tale L. J., 1
(1943), discussed by Northrop, 59 Tale L. J., 196 (1949) and Yntema,
53 Tale L. J., P· 338 (1943-4).
JO One of the more balanced discussions is G. Schubert, 'The Future of
Public Law', 34 Geo. Wash. L. Rev., 593 (1966).
p 8 Jo. Leg. Ed., 399, 400 (1956); also in Conard, op. cit., n.22.
J2 Ibid., 403.
i3 Ibid.
i4 Ibid., 401.
 no t e s to c h a p t e r 5 461

35 Llewellyn mitigated his remarks with some complimentary references to

Cook, Moore and Oliphant in the footnotes, but his tone contrasts
sharply with his earlier, more sympathetic discussions, e.g. in 6 Am. L.
Sch. Rev., 670 (1930), and Jurisprudence, 77 (1931). Llewellyn's speech in
1956 might be interpreted as an indirect attack on what he con-
sidered to be the over-reliance on quantitative methods of some of his
colleagues at Chicago.
36 E.g. Zeisel, Kalven and Bucholz, Delay in Court (1959) does not even
mention Oliphant's studies on the subject.
37 See, however, Rumble, op. cit., above, n.20, and F. Northrop, 'Under-
hill Moore's Legal Science', 59 Tale L. J., 196 (1950).
38 Arnold, Fair Fights and Foul, 67-8 (1965).
39 The semi-success of realism and the accompanying sense of frustration
continue to be a theme in more recent discussions of realism, for example:
At least in the better law schools 'functionalists' and 'realists' are no longer
lonely aliens in a hostile world. In truth they probably outweigh in influence,
if not in number, the Langdellians. Holmes, Pound, Jerome Frank, Llewellyn,
Lasswell and McDougal have fought and won the battle for recognition. Now
the problem is simply one of fulfillment. The door is open, and the way is clear
to those who wish to make law an instrument of sociai policy. All they have to
do is to do it.
In other words, the problem that frustrates so many students and professors
today is a deep dissatisfaction with the prevailing system of legal education,
coupled with an inability even to envision the improvements they all sense are
necessary. The fact that Langdell and his disciples are no longer realistic
targets of abuse only adds to their frustration.
C. Woodard, 'The Limits of Legal Realism: an Historical Perspective', 54
Virginia L. Rev., 68g, 732 (1968).
40 Allen, Law in the Making, p. 45 (4th ed., 1946).

5 THE REALIST CONTROVERSY I 930-1

I 30 Col. L. Rev., 431 {1930), reprinted Jurisprudence, 3-41.
2 Jerome Frank (188g--1957) is usually treated as one of the two leading
'realists', Llewellyn being the other. In the present interpretation,
however, Frank is something of an outsider. Whereas Hohfeld, Corbin,
Cook, Oliphant, Moore and Llewellyn were all law teachers associated
with either Yale or Columbia Law School or both, Frank was a prac-
tioner and an alumnus of the University of Chicago, whose connection
with Yale started after the publication of Law and the Modml Mind and
some of his most influential papers. More important, Frank's main target
of attack was the intellectual orientation of almost all American aca-
demic lawyers, who focused undue attention on appellate courts, with
consequent distortions in their vision of legal processes and in their
46 2 notes to chap te r 5

programmes oflegal training. From his point of view, the perspectives of

Corbin, Llewellyn and Hohfeld were hardly less 'unrealistic' than those
of Beale and Langdell. Although he said little directly about the issues
that divided the scientists and the prudents at Columbia, it is apparent
that he had little sympathy for the ambitions of the scientists to do
'objective' empirical research (see Frank, lf Men were Angels, 294 (1942),
and Reuschlein, JurisjJrut:lence: Its American PropMts, 215), and that the
Columbia reforms oflegal education did not go nearly far enough in the
direction of clinical legal training to satisfy him (on which see Courts on
Trial, ch. r6).
Of course, Frank's ideas were developed in much the same intellectual
milieu as those of the Yale and Columbia realists. On the one hand
the Harvard of Langdell and Beale symbolised a common enemy (see
below, n.4); on the other, the leaders of the revolt against formalism, in
particular Holmes, provided some common intellectual ancestors.
However, Frank's special interest in psychoanalysis and psychiatry was
not shared by the other six 'core members'. On Frank, see especially
Julius Paul, The Legal Realism of Jerome N. Frank (1959); E. Cahn,
Confronting Injustice (r966); W. Rumble, American Legal Realism (r968);
J. Mitchell Rosenberg, Jerome Frank: Jurist and PhilosopMT (1970).
3 See especially, Courts on Trial (1949). While there are hints of Frank's
'fact-scepticism' in Law and tM Modern Mind, this aspect of his thought
was developed at much greater length in his later writings.
4 Especially ch. 4· Three Harvard jurists, Langdell, Beale and Williston,
are the most clearly identified targets of attacks on formalism by 'core'
realists, especially Frank, Cook and Llewellyn. For Frank on Langdell,
see Courts on Trial ch. r6; for Cook on Beale, see The Logical and Legal
Bases oftM Cor!flict of Laws (1942). For Cook on Williston, see pp. 39-40.
Llewellyn had little to say about Beale. While he was critical of both
Langdell and Williston, he also recognised their achievements. For
instance, Llewellyn dedicated Cases and Matnials on tM Law of Sales to
Williston and Scrutton.
5 Frank, op. cit., part II, ch. 7·
6 Ibid., part II, ch. 6.
7 See especially part III, ch. 2: 'Mr Justice Oliver Wendell Holmes, the
Completely Adult Jurist'.
8 44 Harv. L. Rev., 6g7 (1931).
9 Pound to Llewellyn, 21 March 1931. Pound played a prominent part
in the work of the Wickersham Commission, which reported in 1931:
Enforcement of Prohibition Laws: Report of 1M National Commission on Law
Observance and Enforcement, Washington, 1931.
ro 'r. A functional attitc.de, i.e., study not only of what legal precepts and
doctrines and institutions are, and how they have come to be, but of how
they work. Thus far the sociological jurists have been going. But our new
 no t e s to c h a p t e r 5 463

realist in jurisprudence will urge particularly study of concrete instances

of rules or doctrines or institutions in action, in such number and by
such methods as to be able to reach valid general conclusions.
2. Recognition of the existence of analogical, unrational, subjective
element in judicial action, and attempt by study of concrete instances of
its operation to reach valid general conclusions as to the kinds of cases
in which it operates most frequently, and where it operates most
effectively or most unhappily for the ends of the legal order.
3· Recognition of the significance of the individual case, as contrasted
with the absolute universalism of the last century, without losing sight of
the significance of generalizations and conceptions as instruments
towards the ends of the legal order. At this point they have been antici-
pated by Stammler, but they will approach the subject in a different
way through psychology.
4· Giving up of the idea of a necessary sequence from a single cause in
a straight line to a single effect, and hence of the one sovereign legal
remedy for every difficulty and one necessary solution of every problem.
There will be recognition of a plurality of elements in all situations and
of the possibility of dealing with human relations in more than one
way•..•
5· A theory of interests and of the ends of the legal order based on or
consistent with modern psychology, without being tied absolutely to any
particular dogmatic brand of psychology of the moment.
6. A theory of values, for the valuing of interests, consistent with
modem psychology and philosophy, without being tied fast to any
particular body of psychological or philosophical dogma of the moment.
7· A recognition that there are many approaches to juristic truth and
that each is significant with respect to particular problems of the legal
order; hence a valuing of these approaches, not absolutely or with
reference to some one assumed necessary psychological or philosophical
basis of jurisprudence, but with reference to how far they aid lawmaker,
or judge, or jurist in making law and the science oflaw effective, the one
toward the maintaining, furthering, and transmitting of civilization, the
other toward organizing the materials and laying out the course of the
legal order' (Pound, 'The Call for a Realist Jurisprudence', 44 Harv. L.
Rev. pp. 7IQ-II (I930)).
I I 44 Harv. L. Rev., 709 (I93I).
12 Pound to Llewellyn, 2 I March 1931.
13 The best analysis is in Llewellyn op. cit., n.1.
14 Memo, 1931, K.L.P.A., II, 65.
I5 MS, K.L.P.A., II, 65 .
I 6 Pound to Llewellyn.
17 Cf. Hart, in 7I Harv. L. Rev., 6oi-2 (1958).
IS See below (n.38).
46 4 notes to chap te r 5

19 Rumble, op. cit., 45; Yntema, Frank, Dickinson and Fuller are among
those who expressed reservations about the appropriateness of the
term 'realism' to characterise the ideas associated with jurists such as
Llewellyn and Frank. The name has stuck nonetheless.
20 Cf. Pound, 'By "realism" [the realists] mean fidelity to nature, accurate
recording of things as they are, as contrasted with things as they are
imagined to be, or wished to be, or as one feels they ought to be.' 44
Harv. L. Rev., 697 (1931). Of. Frank, Courts on Trial, 401-2, Law and the
Modem Mind, preface to sixth printing (1949). Yntema considered the
term 'philosophically inapposite': 14 Vanderbilt L. Rev., 317 (196o).
21 See below (n.23).
22 See especially Th Common Law Tradition, 50g--10, Jurisprudence 54, 57·
This is a point of some importance. While several prominent members
of the realist movement, including Llewellyn and Frank, had specialized
interests in the nature of judicial processes, it is quite misleading to
suggest that the significance of the realist movement is limited to its
contributions to this topic. Moore's parking studies, Llewellyn's work
on tribal law and the Uniform Commercial Code, and the Columbia
curriculum discussions, all provide examples of work in which judicial
behaviour was not the exclusive or even the primary focus of attention.
Much of the thrust of realism was to react against an intellectual
tradition which encouraged over-concentration on courts, especially
appellate courts. The association of realism with the study of judicial
processes has been a source of two related errors: (i) the idea that some
realists were particularly interested in the topic has been confused with
the idea that all realists defined law in terms of decisions by judges. This
may have been true of Gray and of anyone who can fairly be said to
have defined law in terms of predictions of what the courts will do in fact.
But Llewellyn, for example, saw judicial processes as only one phase of
legal processes in general (see below, pp. 175ft' and ch. 10); he did not
include a general definition of law as one of the shared starting-points
of realism; (ii) the fact that some realists, e.g. Frank, were sceptical
of the predictability of judicial decisions has been confused with the
idea that a realist is one who by definition concludes that such decisions
are unpredictable. Llewellyn was on safer ground in using 'realism'
to refer to a way of looking and not to what is found by the observer -
he himself, in Th Common Law Tradition, concluded that there was a
surprisingly high degree of predictability in the decisions of American
state appellate courts that he had studied (which might not be true of
other jurisdictions). Indeed the term 'scepticism' begs some questions:
were all the hypotheses of those who advanced descriptive or explana-
tory theories of judicial behaviour 'sceptical'? Were, e.g., Frank and
Corbin, sceptical about the same things? Is the term 'sceptic' approp-
 no t e s to c h a p t e r 5 465

riate to so optimistic and romantic a person as Llewellyn? See further,

above p. 32.
Two major studies which suffer by virtue of treating realism as
being primarily concerned with judicial processes are Rumble, American
Legal Realism (xg68), and Moskowitz, SoTTIIJ Aspects of American Legal
Realism (xg6g), D.Phil.Thesis, Oxford. Cp. G. Tarello Il Realismo
Giuridico Americana (I g62).
23 It can be argued that there is a difference between those who merely
acknowledge the validity of a belief, those who stress it, and those who
act on it. Thus, for example, a realist could be defined as someone who
actually observes the 'law in action ... ', etc. The objection to this is
that Llewellyn did not use the term in this sense - and in polemical
contexts he stressed the point that most jurists believe in realism. If
the test of a 'realistic' approach is actually undertaking regular first-hand
observation, how many of the actual individuals associated with the
realist movement would satisfy such a test?
Perhaps the most common source of misunderstanding of Llewellyn
has been that his stress on the value of making actual behaviour a focus
of attention was sometimes interpreted as involving the denial of the
value or validity of other types of enquiry. But, as he pointed out, to
assert that one body of material is worth study, does not involve the
assertion that another should be ignored.
'Legal realism' is sometimes used in a rather different way to mean
'What X, a realist, believed', or 'What the realists believed' or 'Those
beliefs that were held in common by the realists'. Here 'realism' is not
a criterion of identification of 'realists', but a shorthand way of referring
to the ideas of one or more actual people. Thus, for example, 'Llewellyn's
legal realism' may be a shorthand way of referring to Llewellyn's legal
ideas (or to one part of them). The usage is understandable, but is
fraught with pitfalls when applied to 'realists' in that it may tempt
people to think (a) that the membership of the realist movement is
clearly established; (b) (i) that all members of the realist movement
had identical ideas or (ii) that the common ground between members
of the realist movement is established. These aEsumptions are, at the
very least, questionable.
24 Rumble, op. cit., at p. 2, agrees that 'there is no infallible method to
determine who is a legal realist'. He adopts Llewellyn's list of twenty
and accepts Patterson's suggestion (Jurisprudence, 539 (n. 7)) that Arnold
and Felix Cohen should be added; he completes his list with Rodell.
This selection, it is submitted, is unnecessarily arbitrary. Frank (preface
to sixth printing of Law and the Modern Mind) mentions Green, Radin,
Arnold, Douglas, and perhaps E. M. Morgan as fact-sceptics and
seemingly considers Cook, Yntema, Oliphant, Hutcheson, Llewellyn and
himself as 'constructive sceptics' of one sort or another (see above, n.22).
46 6 notes to chap te r 5

Garlan, Legal Realism and Justice (1941), while making no attempt

at a definitive list of 'realists', avoids most of the dangers of generalizing
about realism. Salmond, Jurisprudence (12 ed., Fitzgerald) (1966)
seemingly treats Holmes, Llewellyn, Frank and Gray as 'American
realists' who 'share the view that the law consists of the pronouncement
of the courts' (p.4, n.). The Bramble Bush is the only work of Llewellyn's
that is cited. Reuschlein, in Jurisprudence- Its American Prophets (1951),
treats the following as realists (or 'neo-realists'). Bingham, Arnold,
Llewellyn, Green, Frank, Radin, Yntema, Douglas, F. Cohen, Lerner,
Nelles, T. R. Powell, Rodell, Laski and Garlan. Cook and Oliphant
are treated under the separate heading of 'The scientific method'.
Reuschlein attaches no special significance to this classification.
25 The image of 'the realists' as a group of young men needs to be taken
with a pinch of salt. The youngest person in Llewellyn's list (Tulin) was
thirty in 1931 and the average age of the twenty was over forty at that
time.
26 Jurisprudmce, 44·
27 Ibid.
28 Ibid., 47n.
29 Especially Patterson, Lorenzen, Powell and Radin.
30 Moreover, he had been at Columbia until 1925.
31 In fact, Bingham had been a visiting professor in Columbia in 1926-7;
Frank was later to teach part-time at Yale (1946-57), having been a
research associate at an earlier date.
32 E.g., A. A. Berle, T. Arnold, W. Hamilton. In fact the last two were
in Frank's original list of suggestions. Frank to Llewellyn, 17 March 1931
(K.L.P.A., II, 65, b).
33 Especially at Yale: G. Dession, R. M. Hutchins, Walter Nelles, Fred
Rodell. Later Yale became the headquarters of Harold Lasswell and
Myres S. McDougal, whose 'Law, Science and Policy' built on, but
went beyond, the ideas of some realists. At Columbia, A. A. Berle,
R. L. Hale, J. Hanna, A. Jacobs and Jerome Michael were among
those whose names have sometimes been associated with 'realism'. It
would be of little value to debate the appropriateness of the label in
the case of each of these individuals, but it is reasonably clear that their
inclusion would be no more out of place than the inclusion in Llewellyn's
list of, e.g., E. W. Patterson or F. Lorenzen or M. Radin.
34 Most of this correspondence survives in K.L.P.A., II, 65. It provides
valuable evidence of the then views of many of the jurists included in
Llewellyn's 'sample'.
35 Jurisprudence, 42n.
36 Ibid.
37 Ibid., 52.
38 Ibid., 53, 74· See also The Common Law Tradition, appendix B.
 no t e s to c h a p t e r 6 467

39 'Some Realism About Realism', 68.

40 Jurisprudence, 55-7·
41 Dias, Jurisprudence (2nd ed.), 471 (1964) (modified in 3rd edition (1970)).
42 Ibid., 475· For evidence contra see especially TM Common Law Tradition,
passim; Cases and Materials on the Law of Salls, introduction, p. xi
(where Llewellyn makes it clear that he is concerned both with what
courts say and what they do, in so far as these can be distinguished);
Jurisprw:knce, pp. 56--8. See below, pp. 229-31.
43 Salmond, Jurisprudence (12 ed., Fitzgerald) 35n. (1966).
44 Cross, Precedent in English Law (xst ed.) p. 49, n. (1961). This is a strange
statement in the light of TM Common Law Tradition, which is ignored
even in the second edition (1968).
45 Pound, Jurisprudence I, 271 (1959). Cf. Allen, Law in the Making (5th ed.),
42 (deleted in the latest edition), Mechem, 21 Iowa L. Rev., 669, 67o-71
(1936). Llewellyn, per contra, had much to say about regularity of
official behaviour; see e.g., Jurisprudence, 29-30 (1931), and Law in
Our Society.
46 Friedrich, TM Philosophy of Law in Historieal Perspectioe, 176 (1958). This
is so wide of the mark that almost any of Llewellyn's major writings
can be used to refute it. See especially below, ch. 9 and appendix B.
For a good general discussion of charges that the realists were indifferent
to normative questions, see Rumble, American Legal Realism, ch. 5 ( 1968).
4 7 Goodhart, introduction to Kantorowicz, TM Definition of Law, xviii-
xix (1958). This statement might have some basis in the tendency of
'Scientists' like Cook and Oliphant. For Llewellyn's position see
especially TM Common Law Tradition 56, 131ff (discussed below at
pp. 229-31).
48 Hart, TM Concept of Law, 133, 232, 250 (1961).
49 Pound, 44 Harv. L. Rev., 698, as interpreted by Llewellyn in Jurisprudence,
50. Not applicable to Llewellyn, see below, ch. xo.
50 Hall, 44 Va. L. Rev., 323 (1958). Hall seems here to confuse the signi-
ficance of the contribution of realists to discussion of a rational system
of evaluation with acknowledgement that such a discussion is relevant
to jurisprudence. See Rumble, op. cit., 222ff. For further examples of
this type of misunderstanding see Llewellyn, 'Through Title to Contract
and a Bit Beyond', 15 N.r.U. Law Rev., 163 (n.5).

6 THE MAN
I The main sources of this section are (i) first-hand acquaintance with
Llewellyn 1957-8 (see further 'The Quest for Llewellyn', in Twining,
TM Karl lkwel/yn Papers ( xg68)); (ii) interviews with Professor Soia
Mentschikoff (widow), the late Professor Kenneth Latourette (cousin),
Dr Emma Corstvet Llewellyn (second wife), Professor E. Adamson
Hoebel, the late Professor A. L. Corbin, Professor Ernest Haggard,
46 8 notes to chap te r 6

and numerous friends and colleagues; (iii) various published memoirs

of Llewellyn especially by Edward H. Levi: (I I U. Chi. L.S. Record, 29
(I962)), Grant Gilmore (7I Tak L. ]., 8I3 (I962)), A. L. Corbin (ibid.,
8os, 8 Tak Law Report, no. 2, 9 (I962)), William 0. Douglas (29 U.
Chi. L. Rev., 6n (I962)), Charles E. Clark (ibid., 6I4), William A.
Schnader (ibid., 617), Harry W. Jones, 'Pelagius' (ibid., 6I9), Takeo
Hayakawa (IS Rutgers L. Rev., 717 (I964)), E. Adamson Hoebel (ibid.,
735), Charles D. Breitel (ibid., 745), J. Beem (7 U. Chi. L. S. Rec.,
no. 2, IS (I958)), Max Rheinstein (27 &bels Zeitschiftfur Auslandisches
und Intemationales Privatrecht, 6o1 (1962)); (iv) autobiographical frag-
ments and reminiscences by Llewellyn scattered throughout his
writings; the most sustained attempt at autobiography appears in a
series oflectures given in the course on 'Law in our Society' in 1955 in
which he traced a large part of his own intellectual development,
K.L.P.C. Series M.
2 Ex rei. Soia Mentschikoff Llewellyn.
3 'Behind the Law of Divorce', 33 Col. L. Rev., 25I{n) (I933).
4 Ex rei. Soia Mentschikoff Llewellyn, confirmed by Kenneth S.
Latourette.
5 MS. 'A Non-Conformist Puzzles over Education', K.L.P. B.V. 4.C., 3
(I924)·
6 K.L.P. B.V.7. Llewellyn was the camp's 'disciplinary counsellor'.
This experience, he claimed, taught him a great deal about 'adjudica-
tion and justice, criminal law and the general nature of the decisional
process' (Lecture, IO May 1955). Sumner had made the point that an
excellent mode of understanding social phenomena was to visit the
frontier or some relatively simple primitive community. Llewellyn
found that a boys' camp was an equally good example of a simple
face-to-face group which each year went through the phases of forma-
tion, development and the breaking-in of new recruits; it had the
further advantage that he could be a participant-observer of the
processes of law-government within the group. He never tried to
exploit his ex.'periences systematically, but he quite frequently used
examples from boys' camps to illustrate general jurisprudential points,
for example:
'[l]t was in boys' camp that I discovered that there was nothing inherently
unjust about a retroactive decision, if the decision could be adequately fore-
felt by the people concerned. There was never any difficulty in getting a boy
to accept a penalty on the basis of something that there was no rule against, if
he became convinced that the spirit of the camp was against the activity he
had indulged in. And that is very useful for a man who otherwise worries how
to reconcile, for example, an emergent case with the concepts of justice ..•
you discover that it works. We leave it out of the criminal field for very
different reasons, political in nature and not having to do with the inherent
qualities of justice at all' (ibid).
 no t e s to c h a p t e r 6 469

The principal lesson that Llewellyn claimed to have learned from

working as a camp counsellor was that the fundamental problems with
which law is concerned are common to nearly all human groups and
that these problems are apprehended most easily by observing simple
face-to-face groups, especially those which are in a state of flux (see
the law-jobs theory, below, p. I75)·
7 See further, below pp. I23ff.
8 The following account of Llewellyn's German schooling is based on an
unpublished paper entitled 'Llewellyn and Germany" by Dr Ulrich
Drobnig, who interviewed several of Llewellyn's contemporaries and
examined some publications of the Realgymnasium. Dr Drobnig's
chief informant about this period was Hans Lachmund (see below,
note II).
9 Bibliography, nos. 17, 22, 33, 34, 39, I.f.7, 18o. The most important of
these is the book Prajudiz.enrecht und Rechtsprechung in Ammka (1933), on
which see Radin, 33 Col. L. Rev., 199 (1933).
IO Kocoureck to Llewellyn (1934); Ehrenzweig, interview (1g64).
I I Drobnig, op. cit., 3 (n.8). Llewellyn made many German friends. Much
the closest of these was Hans Lachmund, the son of his English teacher.
Lachmund remained in touch with him until his death. Both followed
legal careers, Lachmund becoming a judge in Mecklenburg. When
Llewellyn returned to Germany in 1928 and again in I93I the two saw
a great deal of each other and they even started to collaborate on an
article on procedure.
Another close friend was Liese} Spencker, a young Schwerin girl,
who was also admired by Lachmund. Her name recurs in Llewellyn's
letters to Lachmund and in I927 he wrote: 'And Liese} was for ten
years the model to which every girl who wanted to please me had to
adapt herself. Even my wife has much in common with Liesd'
(Llewellyn to Lachmund, August I927)· Ultimately Liesel married
Wilhelm Frels of Leipzig; Llewellyn was a frequent visitor to their
house when he was a visiting professor there in I932, and that summer
Liesel accompanied him on his tour of French cathedrals. However, it
was another girl, Else Hagen, also a friend from his Schwerin days,
to whom Llewellyn became engaged in I 9 I 5 after he had been wounded
in the field. The relationship did not last, for Else's parents insisted
that Llewellyn should live in Germany, which he was unwilling to do.
The engagement was officially broken off after the United States'
entry into the war, two years later.
I2 Quoted by Drobnig, op. cit., 3·
13 Ibid.
I4 Ibid., 4·
I5 K.L.P. T., II, 6.
I6 Mrs Margarethe Lachmund to Mrs Arthur Schiller, March 1g62.
47 0 notes to chap te r 6

This corrects an error in Twining, The Karl LlewellYn Papers at p. 42,

which suggests that Llewellyn's efforts were abortive.
17 On Yale, see G. Pierson, Tale: College and University 1871-1937 (1955);
F. C. Hicks, Tale Law School (4 pamphlets, 1935-8). The atmosphere
of Yale College of the period is evoked in Owen Johnson's story,
Stover at Tale (1912, reprinted 1968 with an introduction by President
Kingman Brewster).
18 K.L.P., S., I.
19 History of the Class of Nineteen-Fijuen, 226.
20 Corbin, 8 Tale Law Report, no. 2, 9 (1962). He maintained that his
main reason for taking up boxing was to teach himself to control his
temper (ex rei. Soia Mentschikoff Llewellyn).
21 Ibid.
22 Drobnig, op. cit., 5·
23 E. P. Morris (1853-1938), Dunham Professor of the Latin Language
and Literature, Yale 1909-19. SeeMS fragment K.L.P. B. V. 48·
24 William Graham Sumner (184o-1910), economist and sociologist. See
especially the account by A. G. Keller, Reminiscences (Mainly Personal)
of William Graham Sumner (1933). James G. Leybum, 15 Int. Enc. Soc.
Sci., 4o6 (1968). Also Llewellyn MS, 'Sumner's Essays', K.L.P. B. V.
Sumner's shift to sociology seems to have followed swiftly on the
publication of Spencer's The Study of Sociology (1875), Leybum, op. cit.
25 It is not clear from the records whether Llewellyn was actually taught
by Keller but it is highly likely that he was; there is definite evidence
that he had some personal contact with him. K.L.P. S.I. (diary, 1916).
Llewellyn claimed that reading Sumner had been the most exciting
experience of his undergraduate days. Lecture, 1955, K.L.P. C. series
M.
26 W. G. Sumner, Folkways- A Study of the Sociological Importance of Usages,
Manners, Customs, Mores and Morals (1go6, reprinted Mentor Books,
196o, ed. W. L. Phelps- from which the page references are taken).
27 Op. cit., 32.
28 Op. cit., 33·
29 op. cit., 42-3.
30 Sumner placed great emphasis on the unplanned nature of the folk-
ways; he was also well known for his advocacy of laissez-faire ideas;
in view of this it is not surprising that certain dicta gave currency to
the notion that he had a fatalistic attitude towards social change and
thought that legislation and reform could only follow and could never
bring about such change. This has rightly been shown to be an in-
correct interpretation of Sumner's views (H. Ball, G. E. Simpson, K.
Ikeda, 'A Re-examination of William Graham Sumner on Law and
Social Change', 14 Jo. Leg. Ed., 299 (1962)). The problem of reform
was in fact a central concern of his. Although inclined towards pes-
 no t e s to c h a p t e r 6 471

simism, and contemptuous of those who underestimated the toughness

of folkways and mores, he was not a fatalist. Reform and correction
were difficult, but far from hopeless; indeed one of his main hopes for
the science of society was that it might 'lead up to an art of societal
management which should be intelligent, effective and scientific'
(Folkways, 114).
31 G. P. Murdock, 9 Eru:. Soc. Sci. (1933).
32 The Cheyenne Way, 275·
33 See below, p. 176.
34 See Phelps preface to Folkwf!Ys; for Llewellyn's attitude to philosophers
see below, pp. 172-4.
35 'Non-Conformist Puzzles over Education', MS K.L.P. B. V. 4.c. (1924).
Llewellyn sometimes distinguished between eccentrics (cool non-
conformists who 'moved the world') and rebels (emotional and often
ineffectual). He liked to think of himself as an eccentric rather than
as a rebel and was willing to conform in unimportant matters, if this
was necessary to further a cause: 'To sell radical ideas you need to
wear tails' (ex rei. Soia MentschikoffLlewellyn).
36 Lecture, 26 April 1955, K.L.P. C. series M.ro.
37 History of the Class of 1915, 246-7.
38 See generally F. C. Hicks, rate Law School, op. cit.; A. L. Corbin, 'A
Creative Process', 6 rak Law Report, no. I (I959); 'Sixty-Eight Yean
at Law', 11 ibid., no. 3 (1965).
39 Letter to Arthur Hermann, 28 September 19I8.
40 Ex rei. A. L. Corbin. It seems likely that Llewellyn also had contact
during the same summer with Professor Ernst Freund of the University
of Chicago Law School, who seems to have made a great impression
on him; see 'The Adventures of Rollo', 2 U. Chi. L. S. &cord (1953).
41 There is a substantial amount of material on the relationship between
Corbin and Llewellyn, notably (i) Corbin MS., 'An Account by A. L.
Corbin of his association with Karl N. Llewellyn', 26 September 1965;
(ii) Twining, correspondence with Corbin 1963-5; (iii) Corbin, 'A
Tribute to Karl Llewellyn', 7I rate L. J., 8os ( I962); (iv) Corbin,
'Sixty Eight Yean at Law', I I rale Law &port, no. 3. 20 (t96s);
(v) for Llewellyn on Corbin, see K.L.P. B. II, I I, and 33 Col. L. &v.,
I085 (I933)·
42 Corbin to Llewellyn I December I96o; this is a long and very en-
thusiastic letter on The Common Law Tradition.
43 See below, ch. IO.
44 Llewellyn's approach to legal analysis often contrasted quite sharply
with his speculative work. In the former he strove to be the meticulous
craftsman - in the view of some he was inclined to be over-meticulous;
in writing and talking jurisprudence he was quite often slapdash.
47 2 notes to chap te r 6

Cases and Materials on tM lAw of Sales and The Bramble Bush exemplify
this duality.
45 Corbin, foreword to Hohfeld, Fundamental Legal Conceptions, X (1964
ed.).
46 28 Tale L. ]., 795 (1919), reprinted, ]urisprudenee, ch. 26.
47 See below, note 55·
4-B 'There - still unwritten - was his greatest single contribution; still
unwritten but given to students', Jurisprudenee, 492.
49 Lecture, 26 April 1955, K.L.P.C. Series M.10. See also The Bramble
Bush, 84-g.
so Ibid.
51 See below, p. 137.
52 Lecture, 26 April 1955·
53 Count A. Korzbyski, Science and Saniry (1933), which much impressed
Llewellyn when it was published.
54 E.g., Cases and Materials on tM Law of Sales, introduction, xxiii. 8 Jo. Leg.
Ed., 399-403 (1956), discussed above, p. 63.
55 One incident related by Llewellyn gives some indication of the strength
of his feelings for Hohfeld and of the nature of his relationship with
Cook at that time. Shortly after Hohfeld's death, Cook accepted a
post at Columbia. A rumour spread among the students at Yale that
Cook was planning to 'steal' Hohfeld's ideas on conflicts of laws and
publish the work as his own. Llewellyn got hold of the key ofHohfeld's
office and took his notes and a heavily annotated edition of Story
on Corifliets with the intention of writing an article on 'Hohfeld's
Logical and Legal Basis of the Conflicts of Laws' to anticipate Cook.
He abandoned the project only because he could not understand the
notes. Subsequently Cook published an influential work entitled
The Logical and Legal Bases of the Corifliet of lAws, without any significant
acknowledgement of Hohfeld. The story was told by Llewellyn in a
lecture (26 April 1955, K.L.P. C. Series M. 10). Corbin expressed
surprise and scepticism on hearing this story in 1965. He pointed out
that Cook and Hohfeld had worked closely together. Cook became
Hohfeld's literary executor and edited a selection of his writings. Both
men were interested in conflicts and they had been thinking along
parallel lines before they met; both, for instance, had long had a
contempt for the work ofJoseph Beale. Cook frequently acknowledged
his general intellectual debt to Hohfeld. Even if Cook had been guilty
of 'stealing' Hohfeld's ideas on conflicts - a charge that would be diffi-
cult to substantiate - Llewellyn was prepared to concede that this was
probably a case of inadvertent plagiarism.
s6 Henry Wade Rogers (1853-1926) was Dean of the Yale Law School
from 1903 to 1916. See F. Hicks, op. cit., 58-63. Llewellyn's views on
Rogers were forcibly expressed in a lecture on 10 May 1955· K.L.P.
 no t e s to c h a p t e r 6 473

Series M. 15. Corbin, too, was not enthusiastic about Rogers: 4 :Yale
Law Report, no. 2, 2-4 (I958).
57 Llewellyn lecture, op. cit., I.
58 William Howard Taft was President of the United States from I909
to I9I3 and Chief justice of the United States from I92I to I930. On
his time at Yale (I9I3-2I), see F. C. Hicks, Taft and New Haven (I945).
59 See especially The Common Law Tradition, 2I-2; lecture, 9 May I955•
K.L.P. Series M. I4.
6o See below, 68n.
6I Lecture, 9 May I955·
62 On 'beauty' in law, see Jurisprudence, I7I-g6, and ch. 9·
63 See below, p. 168.
64 Lecture, IO May I955·
65 Ibid. See also K.L.P. C. Series A and B (1923 and I924)·
66 See Walter K. Earle, Mr. Shearman and Mr. Sterling and How They Grew
{I963), especially 218-24. A substantial number of Llewellyn's working
papers survive from this period, K.L.P. E.
67 On Lancaster, see Earle, op. cit., 229-30; Llewellyn, I6 Albany L. Rev.,
I (1952), and lecture, to May I955·
68 Op. cit. n.37, at p. 247·
6g Memo., 'Biography', K.L.P. S. I.
70 Ibid.
7I Corbin to Twining, I965.
72 A bound collection of Documents of Marshall Conferences is preserved in
the Treasure Room of Columbia University Law School library.
73 Ibid., especially Memo no. 3 by Llewellyn.
74 Yntema to Twining, I I October I965.
75 Interview, Hamden I965.
76 See also Corbin, 'A Tribute to Karl Llewellyn', 8 :Yale Law Report,
!)-IO (1962).
77 Ex. rei. Grant Gilmore, 1968.
78 E.g., the minutes of the Yale Law School faculty show that an invita-
tion was extended to Llewellyn at a later date, but are silent on the
matter during this period.
79 Some of Llewellyn's working papers on the Uniform Trusts Receipts
Act survive in K.L.P. F.II. These contain some interesting evidence
on the historical relationship between this Act and Article 9 of the
Uniform Commercial Code.
8o Memo on 'Possible Uniform Commercial Code', K.L.P. J. II.I.b.
(I940); quoted below, appendix E.
81 A seemingly small change marks the start of a breakthrough. In 1925 the
Columbia Law School catalogue listed courses on mortgages and
suretyship, with casebooks by Kirchwey and Ames prescribed by the
instructor, K. N. Llewellyn. In 1926, however, Llewellyn and Magill
47 4 notes to chap te r 6

jointly offered 'Security I' and 'Security II' and used their own
materials. Thus a single 'functional' category (securing of credit) was
substituted for two legal devices (mortgages and suretyship) aS the
basis of organisation; the ground covered in the new courses was
rather more extensive, without any increase in the time prescribed
for study. The class hours for the various courses are of interest:
I925: mortgages (3 hours), suretyship (3 hours); I926: security I
(3 hours), security II (2 hours); I927: security I (3 hours}, security II
(3 hours). See Currie, II, 72-3, on the disappointments of the Columbia
experiment in respect of saving time by reorienting the subject-matter.
Llewellyn remained optimistic: 35 Col. L. Rev., 67I (I935). The shift
to security as an organising concept anticipated the basis for the major
simplification of this area of the law in Article 9 of the Uniform
Commercial Code. Llewellyn was not the first to suggest that security
would be a good organizing concept; Dean Stone, for instance, had
made a similar suggestion in I924, IO A.B.A.]., 233, 235 (I924),
Currie, II, I2. John Hanna took over the courses on security from
Llewellyn and Douglas and eventually produced two highly regarded
casebooks: Cases and Other Materials on Seeuriry ( I932); Cases and Materials
on the Law of Creditors' Rights (I93I}.
82 35 Col. L. Rev., 65I, 652 (1935).
83 Leipzig (I933); see Radin, 'Case Law and Stare Decisis', 33 Col. L.
Rev., I 99 (I 933), a review article of the book.
84 The Common Law Tradition, 339·
85 Drobnig, 'Llewellyn and Germany', MS., 26. The ensuing account
draws heavily on this paper.
86 MS., 'Llewellyn's Inquiry into Judicial Deciding' (I956-7) (attached
to later editions of Law in Our Sociery).
87 K.L.P. D. VII.
88 Llewellyn to Nussbaum, I7 December 1931.
89 K.L.P. citation mislaid.
go Rheinstein, op. cit. Llewellyn began to translate some of Max Weber
into English about 1935 (K.L.P. B. II. 44). He did not complete the
project but thereafter he regularly acknowledged Weber as a major
influence, the exact nature of which is not entirely clear.
91 Especially lectures, 1955. K.L.P. C. Series M.
92 Drobnig, op. cit., 26.
93 See below, ch. I3.
94 Ex. rel. A. L. Corbin (unconfirmed).
95 A collection of press cuttings and some correspondence relating to
this incident are to be found in K.L.P. S.I. See especially New Tork
World Telegram, 14 August 1934· A leader in the New Tork Herald
Tribune on the same day commented:
 no t e s to c h a p t e r 6 475

A PROFESSOR. IN PRACTICAL POLlTICS

It is announced that the Knickerbocker Democrats are going to back Karl

Nickerson Llewellyn, Betts professor of jurisprudence at Columbia University
for member of the Democratic State Committee in place of the redoubtable
James J. Hines, than whom there is no more hard-boiled or practical poli-
tician in Tammany Hall.
It suggests a Daniel entering the lions' den. We sympathize strongly with
Mr. Llewellyn in the grief that will be his before the Hines crowd gets through
with him, but we strongly applaud his courage and approve the spirit that
moves him to get into active politics. After the primary campaign he will
know a great deal more than he does now as to how Tammany leaders operate
and as to the difficulties involved in dislodging them. And, if his spirit is not
broken and his zeal for reform continues, he will be in a better position to be
effective in future fights to rescue the Democratic organization of the I I th
Assembly District from the clutches of Mr. Hines.
Professor Llewellyn has a record of service in working to improve the
administration of the law - making it more vital - and in raising the standards
of the legal profession. It is an encouraging sign when educators are willing to
desert their theories and engage in the active rough and tumble of political
combat. Too seldom have some of our other educators now in public life
bothered to test their theories in the clinics of actual experience.

96 Llewellyn's position is set out in 'Should Congress Enact a Federal

Sedition Law?', I4 Congressional Digest, 251 (I935). Llewellyn cam-
paigned actively during I935 to oppose a Bill on Incitement to Diso-
bedience of Military and Armed Forces. K.L.P. T. II.3.
The question is sometimes asked: why did Llewellyn not join other
radical jurists from Columbia and Yale who went to Washington as
New Dealers? The answer appears to be that, first, he was not basically
in sympathy with the welfare orientation of most New Dealers, and
secondly, his experience in New York politics had made him realise
that he was vulnerable to blackmail because of his German connection
and this made him reluctant to enter public life.
97 One reason for Llewellyn's less active involvement in such activities
after I942-3 was fear of doing anything to jeopardise the Uniform
Commercial Code Project. His campaigning for legal aid was not
affected.
98 See below, pp. 349ff.
99 See below, ch. 8.
100 See below, ch. II.
IOI See below, p. 337·
I02 A series on the same topic was given as the North Lectures at Franklin
and Marshall College, also in I 94 I.
103 See below, ch. 10.
104 See below, p. 354·
47 6 notes to chap te r 6

105 On the Pueblos, see below, ch. 13. On the Commission on the Rights
etc. of the American Indian, see K.L.P. I. IV.
106 See below, ch. g. Transcripts of thirty-three lectures given in this
course are to be found in K.L.P. C. Series H. (1948-49). Llewellyn
had taught jurisprudence jointly with Patterson at Columbia and
some of his lectures in 1947-8 anticipated the new course at Harvard.
107 See Handbook of A.A.L.S. (1949).
108 See below, pp. 283-4.
109 As early as 1930 Llewellyn wrote the following inscription in his
presentation copy of Th Bramble Bush for Harry Bigelow of the
University of Chicago Law School: 'To Harry Bigelow whose school I
hope shortly to see crowd these seaboard institutions to the wall.
II/I/30 Karl' (Infonnation of Professor Sheldon Tefft).
no Levi, op. cit., n.I.
1IOA From Twining Th Karl Llewellyn Papers, pp. 7-10 (1968).
I l l Holmes, 'Profession of the Law' (1886). Speeches, 22 (1913). The phrase
'the half-way artist' as applied to Llewellyn is to be found in Th
Bramble Bush, 126.
112 See generally K.L.P. B.V. and VI. On his 'war essays' see below,
p. 482.
II3 Printed in Twining, Th Karl Llewellyn Papers, 113 (1968).
114 See Th Common Law Tradition, 398-9 (Air: Pelagius; Arrangement:
Jerry Green and Christopher Moore).
II5 Put in His Thumb, preface, v (1931); reviewed byW. Nelles, 41 Tale L. J.
646 (1932).
n6 Ibid., 12.
n7 MS. K.L.P. B.VI. As Llewellyn admitted in the preface to Put in His
Thumb, his serious poems contain 'echoes of John McClure, or James
Stephens, or Sandburg, or Masefield'. He might have added Ogden
Nash:
'When a girl gets a man by the testickles
The rest tickles' (MS fragment).
There is a limerick on the same theme in an MS entitled 'Somewhat
Lewd Loud Limericks': K.L.P.B. VI.
118 Much of Llewellyn's writing is characterised by deliberate informality:
' ... I care little for propriety, and less for manner, if- as I believe -
occasional lapses from the accepted taste and dignity of print give
more hope of making vivid to the students who are a teacher's life
some of the more passionately held convictions which motivate his
living' (Th Bramble Bush, Preface (p. 8 of 2nd ed.)). Perhaps because
of its infonnality, perhaps because it is often casually allusive, perhaps
because of its rhythm, Llewellyn's prose may deceive by its apparent
simplicity: the style invites skimming, the substance often requires
slow perusal. This is particularly the case in those passages where the
 no t e s to c h a p t e r 6 477

author seems to be proceeding by free association, running together

in a single compact passage whole groups of ideas that need to be
slowly and cautiously unpacked by the analytical thinker. Thus the
obstacles to understanding Llewellyn are not solely a matter of taste.
119 E.g., Thurman Arnold to Llewellyn, June 1933; interview with Pro-
fessor Stanley Kaplan. There were also some curious parallels between
Carlyle's fictitious account of his experiences with the Philosopher of
(the] Clothes and my own research on Llewellyn. In Sartor Resartus 'a
young enthusiastic Englishman, however unworthy' (Everyman ed.,
14 (1964)) becomes an admirer of a foreign savant who is unknown 'or
what is worse misknown' in England (ibid., 11). So the question arises:
How could the Philosophy ... and the Author of such Philosophy be brought
home in any measure to the business and bosoms of our own English Nation?
(ibid., 6). Not the least of the obstacles is that of style:
Occasionally, as above hinted, we find consummate vigour, a true inspira-
tion; his burning thoughts step forth in fit burning words, like so many full-
formed Minervas, issuing amid flame and splendour from Jove's head; a
rich, idiomatic diction, picturesque allusions, fiery poetic emphasis, or quaint
tricksy turns; all the graces and terrors of a wild Imagination, wedded to the
clearest Intellect, alternate in beautiful vicissitude. Were it not that ...
circumlocutions, repetitions, touches even of pure doting jargon, so often
intervene (ibid., 22).
His mode of thought is also unfashionable:
Our Professor's method is not, in any case, that of common school Logic,
where the truths all stand in a row, each holding by the skirts of the other; but
at best that of practical Reason, proceeding by large Intuition over whole
systematic groups and kingdoms; whereby, we might say, a noble complexity,
almost like that of Nature, reigns in his Philosophy •.. a mighty maze, yet, as
faith whispers, not without a plan (ibid., 38).
For such reasons it is obvious that 'a paramount popularity in England
we cannot promise him' (ibid., 20). Some of the contemporary reviewers
of Sartor Resartus made themselves ridiculous by trying to prove that
Carlyle was Teufelsdrockh. Their fault was not only lack of humour,
but also oversimplification. Similarly the rich potential of Sartor
Resartus for apt quotations offers a strong temptation to press this
analogy too far. There is little evidence of a close affinity between their
political or philosophical views. Llewellyn was not Carlyle, nor was he
Teufelsdrockh.
120 Woodward, The Age of Reform, 524 (1938).
121 K.L.P. C.P. II, 4 (1959).
122 See especially 'On the Good, The True and The Beautiful in Law'
(1942), Jurisprudence, 167, and bibliography, items 245, 246. Un-
published MSS. K.L.P. Z. I-IV. On the Teufelsdrockh Papers, see
Twining, The Karl Llewellyn Papers, 43-4 (1968).
47 8 notes to chap te r 6

123 E.g., 'The Nonnative, the Legal and the Law-:Jobs', 49 raZe L. ].,
1355 (1940), and some passages in The Common Law Tradition.
124 MS, 'Drama, Dramatics and Kids', K.L.P. B.V. B.a.
125 While Llewellyn's penchant for the folksy and the unsophisticated was
quite marked it only represented one side of him. His taste in music,
the graphic arts and architecture was catholic and reasonably well-
informed - he was, for instance, a lover of classical music, especially
Bach and Beethoven, as well as jazz and folk songs; and while he may
not have been enthusiastic about Kant and Hegel, his discussions of
Aquinas, Aristotle and Weber do not suggest a general lack of
sophistication.
126 H. Cairns, review of The Cheyenne Way (1942), 55 Harv. L. Rev., 707, 710.
127 See further, appendix A.
128 One story in circulation dramatizes this quality in a different context.
Llewellyn had persuaded a rather reluctant Cardozo to sit for the exiled
Russian sculptor, Sergei Konenkov. Llewellyn attended one of the
sittings and found Konenkov almost despairing of being able to
'capture' Cardozo. At his first attempt, Konenkov had depicted
Cardozo as hard and ruthless, without catching any of his warmth
or idealism. So Llewellyn bought some clay and on the following day
he came back with a small head which he had produced himself.
When Konenkov saw it he was delighted, claiming that he now realised
what was wrong with his first efforts; he then proceeded to produce a
new bust which satisfied Llewellyn. (Ex rel. Soia Mentschikoff
Llewellyn and Professor E. Haggard - there is some doubt about the
exact details of the story.) Castings of the work are housed in the law
schools of Columbia, Harvard and the University of Chicago. Such
stories, for this one is not unique, may not convince the sceptical,
but they helped to confirm Llewellyn's reputation for 'genius'.
Llewellyn, who was on close terms with Konenkov, obtained com-
missions for him to do busts of Holmes, Cardozo and Boas. He also
did one of Llewellyn. Konenkov eventually returned to Russia.
129 See, for instance, Corbin's judgment:

It was a constant joy, both personally and intellectually, to work with him.
I was aware that he had highly poetic and emotional tendencies; and I some·
times advised keeping one's 'feet on the ground'; but whenever Karl's mind
was concentrated on a juristic problem, I have never known anyone who did
clearer thinking or who reached sounder results ('An Account by A. L. Corbin
of his Association with Karl N. Llewellyn', September 1965, (MS)).

130 It is significant that Llewellyn greatly admired John Dewey. They

were colleagues at Columbia for several years and Llewellyn sometimes
attended meetings of a seminar on legal philosophy given in the law
school jointly by Dewey and Edwin Patterson. Llewellyn was sympa-
 no t e s to c h a p t e r 6 479

thetic with many of Dewey's ideas, but he did not look on himself as a
'Deweyian' in logic and philosophy and he deplored some of the
excesses of Dewey's disciples in the field of education. As with Holmes,
Llewellyn's admiration for Dewey was as much personal as intellectual:
'Since Thomas Jefferson or Benjamin Franklin there has been nobody
with the sweet, childlike, open eye to see things fresh that Dewey had'
(lecture, 31 March 1959, K.L.P.C., series P, 29). Dewey's method
corresponded exactly with Llewellyn's conception of realism: 'His
method of dealing with problems is still and will always be the great
and needed method: Take a fresh look, look to see what is there, and
what it is about, and re-pose your issues in those terms' (MS, 'John
Dewey and our Law', 4· K.L.P.B., III, 14 (1949)).
Unfortunately Dewey failed to approach law in the same way as he
had approached politics, art and education. Llewellyn blamed
Patterson for this, in that he had treated Dewey first and foremost
as a logician and had diverted his attention too much in the direction
of abstract theorising and away from taking a 'fresh look' at actual
legal processes. He had written one or two important articles, but his
potential had not been exploited. Llewellyn's private ambition, as he
once confessed in a lecture, was to perform the role of a Dewey in
jurisprudence, trying to do for law what the great man had done for
other subjects. The most pleasing compliment that could be paid to
Llewellyn was to compare him to john Dewey.
131 The main sources for this section are (i) interviews with Soia
Mentschikoff Llewellyn and E. Adamson Hoebel; (ii) miscellaneous
Llewellyn MSS especially 'Position Re Religion, 1943', K.L.P.B.V.4.d.
132 Memo, 'Llewellyn to Members of Commission on the Rights etc. of the
American Indians' (undated), K.L.P. I. IV.
133 'Position re Religion, 1943'. This is a particularly revealing document
in which Llewellyn repeatedly draws analogies between his approach
to jurisprudence and the code and his approach to religion; for example,

... What Paul did was to put structure, carrying-power, under Jesus' teachings.
I find I feel about Paul the same way I feel about great lawyers whom I think
to have gone sometimes off track. He over-intellectualized, so far as he wrote•
• . . Let me then stay as close as I may to Jesus' and to Paul's living rather
than - or better, together with - his writing.
With this, 'rebel' and 'non-rebel' begin to line up. I observe with amuse-
ment that I am duplicating in religion a twenty-year road in legal work' (ibid.).

134 According to Soia Mentschikoff Llewellyn this letter was drafted about
ten days before Llewellyn's death, when he claimed that he had at last
understood the idea of salvation through Jesus Christ. Up till then
he had not really accepted the Divinity of Christ; his own religious
ideas had rather been in the style of Old Testament Puritanism,
48 0 notes to chap te r 6

emphasising the idea of a harsh God sitting in judgment on the

individual, tempering justice with mercy (symbolised for Llewellyn
by the Virgin Mary), but not giving much scope to the idea of forgive-
ness of sins and the possibility of a fresh start during one's lifetime.
Thus only at the very end of his life did Llewellyn show signs of being
relieved of the burden of a harsh Puritan conscience.
135 See below, Appendix A.
136 Jerome Michael of Columbia Law School, a close friend of Llewellyn's,
was trying to get his support for an Anti-Discrimination Manifesto
within the AALS. A draft letter to Michael, justifying his reasons for
not supporting the move survives in K.L.P. R.J. Michael (undated).
137 See below, p. 292.
138 See below, ch. 13.
I 39 As indicated in the text there are differing opinions about Llewellyn's
'liberalism' among those who knew him, including some of his intimates.
The interpretation adopted here is essentially that of Soia Mentschikoff
Llewellyn. It must be conceded, however, that this is not the only
tenable view.
140 '[Characteristically, natural lawyers] use human reason (Right Reason- the
best they have, tested as best they can test it, with results conceived as Right)
to explore for and ascertain the Right goals of a legal system, and they then
propound their results explicitly as the Right Goals. (Contrast Ihering, whose
emphasis is on process - the part played by purpose; the horse-sense inade-
quacy of over-abstract self-centred conceptualism in actual legal work; men's
interests as driving factors, etc. - with his ultimate values largely unstressed
or implicit; or Holmes, to whom ultimate goals were 'can't-helps', and
'fighting faiths', not subject to the test of reason - though to be lived by and
fought for; or Dewey, whose Ultimates- e.g. ongoing ever-unfolding of the
perfectability of average human nature in self-disciplined freedom; and ever-
widening tolerance and growth - are largely implicit, only his methods and
more immediate goals (democracy; education for growth and responsibility)
being really proclaimed; or Pound, again proclaiming a method, but preach-
ing mainly as goals some interstitial goals such as due process, judicial review,
effective court organization and procedure, balance in approach' (Law in Our
Society, MS, 6o (1950 ed.)).
141 Op. cit. (n.136).
142 See below, p. 367.
143 A crucial point of disagreement between Llewellyn and Hoebel was
whether the traditional 'parental' dispute-settlement mechanisms of
the Pueblos were consistent with the ideals of American democracy
as reflected in the adversary process.
144 See below, p. 187.
145 To Llewellyn 'due process' connoted principally the idea of a fair
hearing and adequate representation, where necessary. The concept
has been broadened by judicial decisions in recent years.
 no t e s to c h a p t e r 7 481

146 'Technique without ideals is a menace; •.. ideals without technique

are a mess': 'The Adventures of Rollo', 2 U. Chi. L. Sch. Record, 3, 23
(1952). See also, 'What Law Cannot Do for Inter-Racial Peace',
Jurisprudmce, 48o (1957).
147 Llewellyn left behind him a very substantial collection of papers,
including some important unpublished manuscripts. In 1964 I under-
took to supervise the sorting and arrangement of this collection prior
to their presentation to the University of Chicago. The project was
completed in 1965 and the Karl Llewellyn Collection is housed in the
library of the University of Chicago Law School. Two publications
were associated with the project: a detailed mimeographed inventory
of the collection (Ellinwood and Twining: The Karl Llewellyn Papers:
A Guide to the Collection (revised ed. 1970)) and a short book entitled
The Karl Llewellyn Papers ( 1968). The latter contains a personal memoir
of Llewellyn, a description and evaluation of the collection, biblicr
graphies of Llewellyn's published and unpublished works, and a
selection of shorter manuscripts which had not previously been
published. While there is inevitably some overlap between The Karl
Llewellm Papers and Part Two of the present work, they are intended
to complement each other.

7 TWO EARLY WORKS

[Parts of cbs. 7-9 are based on an article originally published in 30
M.L.R. 514 (1967), 31 M.L.R. 165 (1968).]
1 The review of Campbell was published in 40 Harv. L. Rev., 142 (1926).
The other reviews were published in 32 Tale Law Jo., 299 (1923), ibid.,
633 (1923), 33 Tale Law Jo., 226 (1923), ibid., 894 (1924), 34 Tale Law
]o., 454 (I925), 25 Col. L. Rev., 980 (I925), ibid., I IOI (1925).
2 40 f/arv. L. Rev., 143, 144-5 (1926).
3 Ibid., 145·
4 Op. cit., ix.
5 C. C. Langdell, A Selection of Cases on the Law of Contracts (1871). Further
notable examples are McDougal and Haber, Property, Wealth, Land
(1948); Mueller, Contract in Context (1951); Dession, Criminal Law,
Administration and Public Order ( 1948) and nearly all of Corbin's works.
6 Most striking, perhaps, is the change made in the third edition of
Woodward's Cases on the Law ofSales (I 933) by the editor, Lawrence Void.
To quote the preface:
One distinctly new feature not found in the earlier editions baa been added,
An attempt has been made to relate the legal material definitely to the business
facts of current marketing transactions. To this end occasional extracts from
certain business literature, or briefer references thereto, have been from time
48 2 notes to chap te r 7

to time included in the footnotes. To this end there is also now included in the
appendix, not only a group of typical business documents frequently en-
countered in current sales transactions, but also a few samples of illustrative
practical cases and comments taken from the business side of marketing.
Specific credit for this is given by Void to Llewellyn.
7 See Ehrenzweig, 'The American Casebook: "Cases and Materials" '
(I944), 32 Georgetown Law Journal, 224; Currie, 'The Materials of Law
Study III' (I955), 8 J. Leg. Ed., I et seq.
8 See above, ch. 4·
9 Report of Dean Young B. Smith, Columbia, 12-3 (1933).
Io At p. xxiii.
I I 8 ]o. Leg. Ed., 50 (n.224) ( I955)·
12 At this time Llewellyn accepted the then fashionable psychological
theory of rationalisation with fewer reservations than he did sub-
sequently (see especially The Common Law Tradition, I I et seq.); but it
should be noted that even at this stage he by no means ignored com-
pletely the reasoning of the judges, and a fair number of judgements
are reproduced in toto, representing approximately one-third of the
material. Subsequently he was to distinguish more clearly the psychology
of decision-making from the logic of justification. If the book had been
revised twenty years later the editor might also have been more in-
hibited about making his own digests of the facts of cases.
I 3 On the handling and distortion of facts in judicial processes, see intro-
duction, x, and 6 Am. L. Sch. &v., 670, 675 (I930).
14 The I9I9 edition of Williston's Cases on Sales has 1,I96 pages and just
under 400 cases; Woodward (I9I3) has approximately 250 cases in 791
pages; Falconbridge, a Canadian book, has 68o pages and about I75
cases.
IS Introduction, xxii.
I6 Op. cit., 204.
I7 P.XI. cp. MS, 'Babel versus Teamwork: Jurisprudence since I goo', at 5·
K.L.P. B III 36(d) (I942-3).
I 8 H. Oliphant, Summary of Studies in Legal Education, ch. ix (I 928). See also,
J. A. Jolowicz (ed.), Classification and Division of the Law (1970).
I9 'On the Problems of Teaching "Private" Law', 54 Harv. L. &v., 775,
787 (I94I).
20 Op. cit., 788.
21 The chapter headings read as follows: Book I. The Contract for Sale:
Chap. I: 'The Price Term of the Contract'; Chap. II: 'Place and
Manner of Delivery'; Chap. III: 'Seller's Obligation as to Quality:
"Warranty"'; Chap. IV: 'The Buyer's Remedies: Further Technical
Aspects'; and Chap. V: 'Quantity and Time of Delivery'. Book II.
Property in Goods: Chap. VI: 'Title'; Chap. VII: 'The Unpaid Seller
and the Goods'; Chap. VIII: 'Conditional Sales: Instalment Contracts';
 no t e s to c h a p t e r 7 483

Chapter IX: 'Intervention of a Financing Agency in Sales Transactions';

Chapter X: 'Certain Policies Overriding Intent'; Chapter XI: 'Statute
of Frauds'; Appendix A: 'Uniform Acts'; Appendix B: 'Typical Forms'.
22 Op. cit., I.
23 'Study of the actual use of the title concept by the courts in contract
for future sale results in the conclusion that the allocation of title is in
fact determined repeatedly by features of the contract which serve
equally well to solve the problem without recourse to the title concept
itself' (introduction, xiv.)
In a letter to Soia Mentschikoff, dated 23 February Ig62, Professor
Milton Handler wrote:

I was one of the rare professors who had the sagacity to master and employ
with, I hope, some effectiveness, his monumental but difficult casebook. I
vividly remember our joint appearance before the Seminar on Legal Education
in which both of us reviewed Llewellyn's Cases and Materials on Sales. I was
supposed to be the critic and he the defender. AB it turned out, the roles were
reversed. He was very pleased when I said that his Warranty chapter- which I
think is one of his many great contributions - was Brahmsian in organization.
There he applied the classical symphonic form to the presentation of legal
doctrine. He had two themes: the substantive and procedural. There was first
the enunciation of both themes; then the further development of each separ-
ately; and finally a recapitulation or coda in which the two were interrelated
and then combined. The lesson that he was trying to put over was that pro-
cedural atavism frequently nullified substantive advances. He was very pleased
and I very proud that I had unlocked the secret which had eluded most of his
professorial colleagues.

24 Above, p. 79·
25 Jurisprudence, s6n.
26 E.g., Donnelly, Goldstein and Schwartz, Criminal Law (Ig62), Goldstein
and Katz, The Fami?J and the Law (Ig6s), Katz, Goldstein and
Dershowitz, Psychoana?Jsis Psychiatry and the Law (I g67).
27 Op. cit., ibid. On Langdell's educational ideas, see above, p. 11.
28 Preface to Cases on the Law of Quasi-Contracts (I888), cited by Redlich,
The Common Law and The Case Method, 24 (Carnegie Foundation,
Bulletin no. 8, I9I4)·
29 Cf. Pound, Jurisprudence II, I29· On standpoint, see Twining 'The Bad
Man Re-visited' Cornell L. &v., (forthcoming).
30 This is apparent from the introduction and from the much criticised
~hapter I of The Bramble Bush. Llewellyn's dictum: 'What these officials
do about disputes is, to my mind, the law itself' (2nd ed. I2, modified in
the foreword) and Holmes' parallel statement in 'The Path of the Law'
were each made in the context of an address to intending private prac-
titioners - with the image of 'the counsellor' very much in the forefront
of the mind of the speaker. See below, p. 148.
48 4 notes to chap te r 7

3I Op. cit., xv (n. 3).

32 See especially 'The Place of Skills in Legal Education' (Report of
Committee on Curriculum, drafted by Llewellyn),Handbook of Associa-
tion of American Law Sclwols, I5!f-20I (I944); 75 Col. L. Rev., 345 (I945).
Cf. Rutter, 'A Jurisprudence of Lawyers' Operations', I3 J. Leg. Ed.,
30I (I96I). See further, below, p. 354·
33 'The Study of Law as a Liberal Art', Jurisprudence: Realism in Theory
and Practice, 375, 377 (I96o).
34 Ibid., 376.
35 Ibid.
36 Ibid., 204-5.
37 Above, p. 79·
38 See above, ch. 5·
39 For citations, see above, pp. 8o-I, 411.
40 The main sources used in this section were: (i) Llewellyn, The Bramble
Bush, I st ed. (I 930), 2nd ed. (I 95 I) ; miscellaneous drafts for The New
Bramble Bush, K.L.P. B. III. 4, B. IV. 13; transcripts of 5 Bramble Bush
lectures (I931), K.L.P. C. Series C. (ii) Reviews by Gilmore, 6o Tale
Law ]., 1251 (1951), and Frank 40 Tale L. ]., I I20 (1931). Frank,
although enthusiastic, considered Llewellyn's moderation 'exag-
gerated', ibid., I 122. A Llewellyn MS., 'Reviews of The Bramble Bush',
K.L.P. B. II. 7· contains five satirical reviews by Llewellyn in the vein
of an outraged practitioner, a bolshevik revolutionary, conventional
'Yalumbia' and 'Harmchigan' reviewers, and a layman who berates
its essential conservatism.
References to The Bramble Bush in this chapter are to the second edition,
because this is more generally available.
4I See especially foreword to 2nd ed., IO.
42 At 4·
43 Ibid., ro6, Cf. I 19.
44 Ibid., 96.
45 See G. Williams, Learning the Law, 2 (6th ed. 1957).
46 Holmes, 'The Profession of the Law' (r886); Speeches 22 (1913). Cf. the
peroration of 'The Path of the Law'.
47 At I28--9.
48 See below, p. I48.
49 'On What is Wrong With So-Called Legal Education', 35· Col. L. Rev.,
651, 653 (1935).
50 At 139.
51 At t39-4o.
52 At I I.
53 See also introduction to Cases and Materials on The Law of Sales.
54 On this, see Twining 'Pericles and the Plumber', 83 L.Q.R., 396 passim
(I967).
 no t e s to c h a p t e r 7 485

55 At 12 3-4. cr. n.
56 E.g., L. Eron and R. Redmount, 9 Jo. Leg. Ed., 431, 437-8 (1957).
57 At 124.
58 Especially 11-6, 92-5.
59 At 124.
6o At 18.
61 This aspect of The Bramble Bush is discussed below, pp. 231ff.
62 On rules, see above, p. 18, below, ch. g, and Appendix B; on statutory
interpretation, see below, ch. 10; on Hohfeld, see above, ch. 2.
63 At 7·
64 At g.
65 At 12. cr. 20, 'Thus far I have told you that what law was about was
the dealing with disputes. That it was made up large?J of what officials
do about disputes' (italics added). See further passage cited below at
p. 34B·
66 At 14-5. The private practitioner orientation of the paragraph from
which this comes is very clear.
67 See below, pp. 177-80.
68 E.g. Hart, The Concept of lAw, 133 (1961). See generally D. Moskowitz
Some Aspects of American Legal Realism D. Phil. Thesis, Oxford (1963).
6g See generally 49 Tale L. J., 1355 et seq. (1940).
70 E.g., Dickinson, 79 U. Pa. L. Rev., 833, 838 (1931). Cf. Pound, Juris-
prudence, II, 129-32 (1959).
71 At g. Mter the publication of The Bramble Bush, F. Beutel wrote a
critical but friendly letter in which he said, inter alia: 'Your definition
of law in the first chapter states what, to me, is only a half truth.'
Llewellyn's marginal comment is: 'Right.' 15 November, 1930. K.L.P.
R. II. 6.
72 Jurisprudence, 3 (1930).
73 Moskowitz, op. cit., 3g&-gg, points out correctly that Llewellyn returned
to the theme of 'what officials do about disputes' in other parts of
The Bramble Bush (13, 20, 21, 75, 83, and 85) and in some of his other
writings in the period 1928-31. Moskowitz continues: 'Contrary to
Llewellyn's claim, this definition does not appear on one page only to
be disregarded throughout the rest of the book. It is employed con-
sistently throughout the book and the purpose of the critics in quoting
the sentence is not to take the sentence out of context but to use that
sentence as a summary of the theory expounded in the book' (396). This
misses the point of Llewellyn's objection to the continued citation of the
sentence, for the following reasons: (i) this was not Llewellyn's 'definition
of law'; (ii) the context of The Bramble Bush, as outlined in the present
chapter, is consistently ignored by critics; (iii) it seems odd that critics
should persist in paying attention to an early statement which has been
retracted, while almost totally neglecting Llewellyn's more sophisticated
48 6 notes to chap te r 8

and scholarly discussion of the concept of law in 'The Normative,

The Legal and the Law-Jobs' (see below). Moskowitz justifies his
observance of this extremely dubious practice on the lame excuse that
Llewellyn's later writings 'are not generally considered to be typical of
realism' (402). See also Friedrich, The Philosophy of Law in Historical
Perspective (2nd ed.), appendix.
74 See below, p. 200.
75 In 1931 he delivered a series of five introductory lectures which pur-
ported to supplement The Bramble Bush. Transcripts are to be found in
K.L.P. C. Series C. (1931).
76 At 7·
77 K.L.P. B. III. 4 (1947-51). Four complete chapters and a number of
draft fragments survive.
78 Sets of materials for this course are in K.L.P. M. There are also the
transcripts of a limited number of Elements' lectures in K.L.P. C.
Series Nand 0.
79 2 U. of Chi. L. Sch. Record, no. 1 (1953).
8o Ibid.

8 THE CHEYENNE WAY

1 B. Malinowski, Crime and Custom in Savage Society (1926). According to
Llewellyn:
I hit the law-jobs first under the star of Keller and Sumner (in that order), and
then of Hohfeld (the atomizer) Cook (the logician), Corbin (the combiner of
Hohfeld and Cook with Sumner-like thinking). I got worried..•. And I had
been studying boys in boys' camps, and men in faculties, and written records.
And then I had found Ehrlich, and had been somewhat crushed in spirit, be-
cause he had seen so much; and after that I had found Max Weber...•
Ms, 'Llewellyn's Appendix on Allocation of Responsibility' (for The
Cheyenne Way), K.L.P. I. 1. During the late 19205 and early 19305
Llewellyn had relatively close personal contact with Franz Boas, the
doyen of Columbia anthropologists. Llewellyn described Hoebel as 'a
Boas-schooled anthropologist' (ibid.) • .
2 Ibid. An anthropologist has commented:
In Malinowski's earlier work, Argonauts of the Westma Pacific (1922), the Tro-
briand 'chief' emerged more as a ceremonial leader than a political one. It is
not surprising, then, that Malinowski would have difficulty fixing the chief's
judicial capacity in Critm and Custom (1926). More important, Malinowski was
primarily concerned with mechanisms maintaining order and equilibrium in
Trobriand culture as a whole; to him, reciprocity inherent in social structure
fulfilled this function. In this view, precise analysis of cases which would reveal
the legal role of particular individuals or agencies would not be needed. (Miss
M. Johnston, communication to the author.)
 no t e s to c h a p t e r 8 487

3 Hoebel, The lAw of Primitive Man, 34 (1954).

4 The following account of the genesis of The Ckeytr1114 Wa1 is based partly
on material in K.L.P. I, partly on an interview with Professor Hoebel,
and partly on Hoebel's article 'Karl Llewellyn - Anthropological
Jurisprude', 18 Rutgers L. Rev., 735 (1964).
5 Cited by Hoebel, The lAw of Primitive Man, 40 (1954).
6 Ultimately published sub nom. The Political Organization and Law-Ways of
1M Comanche Indians, Memoirs of the American Anthropological Associa-
tion, no. 54 (1940).
7 See Hoebel in American Anthropologist 37, 32o-51 (1935); ibid., 41,
44o-57 (1935); and op. cit., appendix A, 135-42.
8 The Cheyennes, Indians of the Great Plains ( 196o). Readers of The Ckeyenn4
Way were referred to George Bird Grinnell's The Ckeytr1114 Indians (1923)
for a general account. See also Grinnell The Fighting CheYenn4s (1915).
9 Cairns, 55 Harv. L. Rev., 707, 710 (1942).
10 Op. cit., 329.
II 44 American Anthropologist, 478--g (1942); doubts were also expressed by
Redfield and Levi-Strauss, op. cit. (below, n.37). However, in 1967
Hoebel was prepared to say 'Lowie notwithstanding, I have yet to see
any people whose legal culture is described in the anthropological
literature who come close to the Cheyennes in juristic skill, except
Max Gluckman's Lozi. It could be, as Lowie suggests, if other tribes
were studied with the same detailed attention to process and solution,
that other good examples would turn up.' Hoebel to Twining, Sep-
tember, 1967.
12 At 313.
13 At I IB--9.
I4 At 314·
15 Ibid.
I6 At 316-7.
17 At 318--g.
IB At 333·
19 At II9.
20 At I6o.
21 At 315.
22 For a critique of the early phases of The Restatement of African lAw, see
Twining, The Place of Customary lAw in the National Legal Systems of East
Africa ( 1g64); for a reply, see Cotran, 'The Place and Future of Custom-
ary Law in East Mrica', in East African lAw Today (I.C.L.Q. Supplement
no. 12, 1966), 85--g. Cotran maintains, inter alia, that while working
on the Restatement in Kenya he did analyse 'trouble cases', but his
description of his method suggests that it was quite different from that of
Llewellyn and Hoebel.
48 8 notes to chap te r 8

23 The Cluyenne Way, 22. A commol} response to the refusal of informants

to talk in terms of rules has been to conclude that 'these people do not
really have "law".' This was the reaction of the anthropologists who
were sceptical about Hoebel's Comanche project. Another response has
been to seek for norms implicit in the behaviour or talk of informants,
especially those who are participants in decision-making. Thus Fallers,
on finding that the elders among the Basoga of Uganda were unable or
unwilling to talk in terms of general rules, attempted to find general
principles of law implicit in their questions and comments during
judicial proceedings (Fallers, 'Customary Law in the New African
States' (xg62), 27 LAw and Contemporary Problems, 6os), see further
Fallers' valuable work, LAw Without Precedent (1969).
24 Gulliver, Social Control in an African Society, 241 (1963) (if. Pospisil,
Kapauku Papuans and Their lAw, passim, but especially 286-88 (1958)).
Gulliver's theoretical models of the 'judicial' and the 'political' types of
dispute-settlement processes (296 et seq.) need to be considered in the
light of modern jurisprudential writings on 'the nature of the judicial
process'.
25 Proverbs provide a simple illustration: e.g. 'Too many cooks spoil the
broth', but 'Many hands make light work'. The writer has been told of
an instance, which he has been unable to substantiate, of a tribe on the
east coast of Africa which was exposed to Islamic influence. At con-
claves in which disputes about succession were settled, it would regularly
occur that one party would advance an argument based on tribal
custom, to be met by an opposing argument based on Islamic notions.
When asked by an anthropologist why they did not resolve this kind of
doubt once and for all, by agreeing on a single consistent body of rules,
his informants reacted with incredulity that anyone should make so
naive a proposal. How, he was asked, could disputes be satisfactorily
settled, if there was only one set of rules to fall back on?
26 'Remarks on the Theory of Appellate Decision', 3 Vanderbilt LAw Rev.,
395 (1950), reprinted in part in The Common LAw Tradition at appendix
C ( 1960). Several other writers have commented on the general tendency
in the common law for 'doctrines to travel in pairs of opposites' (e.g.
Lasswell & McDougal, discussed Bodenheimer: Jurisprudence (1962),
pp. 14o-3). Julius Stone goes so far as to say that 'competing versions
of a legal category are a normal feature of the authoritative materials
in the common law', Legal System and LAwyers' Reasonings 254 (1964).
27 Hoebel, op. cit., 35·
28 Ibid., 34·
29 Ibid., 74-B (n.4).
30 At 29.
31 See Twining, op. cit., 47-9 (n.22).
32 At 21-2.
 no t e s to c h a p t e r 8 489

33 Notable recent exceptions include L. Fallers, Law Without Precedent,

M. Gluckman (ed.), Ideas and Procedures in African Customary Law (I969),
and the work of Richard Abel on the customary law of wrongs in
Kenya (see especially I7 Am. J. Comp. L., 573 (I96g)).
34 At I65.
35 Hoebel, The Law of Primitive Man, I¥-3·
36 For a balanced general discussion of the notion of jural postulates, see
G. Sawer, Law in Sociery, I47 ff. (1965). An anthropologist has com-
mented:
In Hoebel's particular usage, jural postulates are selected to be consistent with
principles set in a culture's basic postulates. Like Morris Opler's themes or
Ruth Benedict's culture patterns, the basic postulates regulate the selection of
all traits in a culture from a range of possibilities; conflicting or ambiguous
norms find their place only as a negative measure of a culture's integration.
Listing jural postulates allows for certainty and predictability in judicial
behavior. However it is hard to reconcile this view of culture with that which
perceived the dynamic role of the trouble case, as suggested in the original
formulation of the case method. (Miss M. Johnston, communication to the
author.)

37 Malinowski, 2 LaU!Jers Guild Review, I (I942), a review article believed

to be Malinowski's last completed work; Redfield, 9 U. Chi. L. Rev., 366
(I942); Lowie, 44 American Anthropologist (N.S.), 478 (1942); Levi-
Strauss, I Jo. Legal and Political Sociology, I 55 (1942); Cairns, 55 Harv. L.
Rev., 707 (I942); Timasheff, 7 Am. Sociological Rev., 130 (I942); Hamilton,
10 U. Chi. L. Rev., 23I (I942); Pound, 5 Universiry of Toronto L. Rev., I
(I943)·
38 Final Report on The Cheyenne Way to Columbia Social Science Research
Council, K.L.P. I. r. 4• (1943).
39 M. Gluckman, The Ideas of Barotse Jurisprudence, I (I965).
40 E.g. Richardson (Kiowa, I949), Lips (Naskapi, I947), Smith and
Roberts (Zuni, 1954), Gluckman (Barotse, 1955 and 1965), Holleman
(Shona, 1952), Bohannan (Tiv, 1957), Pospisil (Kapauku, 1958), Colson
(Plateau Tonga, 1952), and Gulliver (Arusha, 1963), Fallers (Soga,
1969). This list is by no means exhaustive. Of the few works on tribal
law by anthropologists in which the method was not extensively used,
four of the best known were intended primarily as handbooks for
courts - Cory and Hartnoll (Haya, 1945), Cory (Sukuma, I953),
Schapera (Tswana, I938), Howell (Nuer, I954), cj., Epstein (ed.),
The Croft of Social Anthropology (1967). In a general account of the
development of anthropological studies of primitive law, the con-
tribution of others, e.g. Hobhouse and Radcliffe-Brown, would have to
be considered.
4I In the mid-I94os Llewellyn and Hoebel embarked on a study of the
49 0 notes to chap te r 9

Pueblo Indians of New Mexico (see below, ch. I3)· Llewellyn died
before this project was completed.
42 On 'beauty' in law, see below, pp. I97-9·
43 Hoebel, op. cit., 48 (n.6). See further, Twining 'Law and Anthropology'
(forthcoming in Law and Society Review).
44 J. Frank, Courts on Trial, 77 (I963 ed.).
45 E.g. Social Meaning of Legal Concepts (ed. Cahn), 112 (1950). Cf. the
general scepticism ofHayakawa, I8 Rutgers L. Rev., 7I7, 722-33 (1964).
See also Stone, Social Dimensions of Law and Justice, I02, 764 (I966).
Redfield, in justifying his scepticism about the 'beauty' of Cheyenne
juristic method, also gives the best reason for being cautious about
analogies between 'primitive' and 'modem' societies; 'Law has an easier
time of it in primitive society than it has in a modem society, for in
the former there is a strong consensus, a common moral order, and
consistency of custom and institution'; 9 U. Chi. L. Rev., 366, 36g.
On Llewellyn's optimism about the prospects of consensus in the United
States see below, p. 436.
46 E.g. Ms, 'Law in the Family', K.L.P. B. II. 19 (193-).
47 F. W. Maitland, Collected Papers, vol. III, 300.
48 Above, p. I 38.
49 Below, p. I75·
50 The Common Law Tradition, 513 (n.12). Llewellyn continued:
This is the kind of contribution by anthropology to Jurisprudence for which I
have always hoped. You suddenly hit upon beauty and vision in a strange cul-
ture, and you may be the person in whom a seed takes root, so that light is shed
at home. The values of comparative law and comparative politics are not
different, except that the chances of deep illumination may be less.

9 LAW IN OUR SOCIETY

I E.g. Lasswell and Kaplan, Power and Society (I950).
2 See Merton, Social Theory and Social Structure, part I (I967 ed.).
3 K.L.P. B. II, 22.
4 The most important are K.L.P.B.I., 2, 6; K.L.P.B.II, 17, 2I, 36, 42;
K.L.P. D. D, VII (in German).
5 I.e. (i) 'The Normative, the Legal and the Law-Jobs', 49 Tale Law Jo.,
I355-I400 (I940); (ii) 'My Philosophy of Law', in Kocoureck, (ed.),
My Philosophy of Law, IBI-97 (1941); (iii) 'The Theory of Legal
"Science",' 20 N. Carolina L. Rev., 1-21 (1941). (i), which is the most
important, was published just before The Cheyenne Way. Roscoe Pound
paid tribute to it as 'much the best outline of the task of a sociology
of law and the way of going about the performance of it which has
appeared'. II Jurisprudence, I96 (I959).
6 Law in Our Society: A Horse-Sense Theory of the Institution of Law: Topical
Syllabus (1948-1958) (hereafter cited as Law in Our Society). For an
 no t e s to c h a p t e r 9 491

inventory of the various editions of Law in Our Socii~ see Ellinwood

and Twining, Th Karl Llewellyn Papers: A Guide to the Coll«titm, section
L, 7()-'}. (revised ed. 1970).
7 What exactly llewellyn intended to be the relationship between
Jurisprudmu: Realism in Thory and Practia and the successor to Law in
Our Socii~ is not entirely clear. The preface to the former makes no
reference to the proposed book; the papers collected are not meant
to be representative of llewellyn's writings as a whole, for not only are
none of his commercial law papers included, but also three of his most
important papers on jurisprudence are omitted: 'The Normative,
the Legal and the Law-Jobs', 'The Theory of Legal "Science"', and
'My Philosophy of Law' (see note 5 above); a possible explanation
of the omission of these from Jurisprudenee is that llewellyn was keeping
them in reserve for use in connection with the next book. llewellyn
claimed that the papers included in Jurisprudenee were organized around
the single theme of 'realism': this does not in itself explain either some
of the omissions or some of the inclusions. Indeed, the selection seems
somewhat idiosyncratic, so that although it is useful in that it brings
together in convenient form a number of llewellyn's writings, it fails
to convey adequately the underlying unity of his thought.
8 See below, Appendix C.
9 See below, p. 497ff.
10 See above, p. 35·
II On the term 'jurisprudence', see Patterson, Jurisprudenee, 7-1 o ( 1953);
Dias, Jurisprudenee (2nd ed.), 1-3 (1964).
12 Law in Our Socii~, 11. See, further, appendix C.
13 This is a reconstruction from a number of sources, especially {i)
author's notes on 'Law in Society' lectures, 1958; {ii) Jurisprudena, 86;
(iii) 'Theory of Legal Science', 2. llewellyn attributed the distinction
between 'science' and 'prudence' to C. Merriam, New Aspects of
Politics (2nd ed. 1931). llewellyn did not attach much significance to
the scheme, and in Law in Our Socie~ he divided the material up into a
number of 'theories', viz. (i) the basic theory of the institution of law-
government (the law-jobs theory); (2) theory of the crafts of law;
(3) theory of theories and of truth (which overlaps with theory of legal
science); (4) theory of justice; (5) theory of American appellate judicial
decision. There were also rudimentary sketches for a 'theory of dog-
matics' and a 'theory of problem solution'. Elsewhere he also developed
a 'theory of legal rules' (see below, p. 200) and a 'theory of legal aes-
thetics' (below, p. 197). 'Theory' in this contest means little more
than a fairly coherent collection of ideas on a topic.
14 See C. P. Harvey, 27 M.L.R., 365 (1964). Purists refer to the game as
(real) Tennis.
15 llewellyn's most eloquent statement of the utility of this kind of working
49 2 notes to chap te r 9

theory is to be found in a memorandum in which he argued the case

for making jurisprudence a compulsory subject at Columbia. The
memorandum ends as follows:

In sum, then, a compulsory third-year special course in Jurisprudence seems

to be an obligation we owe to every man who is to be a lawyer. That he may
try, on his own, to see Law, whole. That he may try, on his own, to make what
he has been doing, and what he is to do, take on a meaning, as a Whole. That
hi" may enter into recognition that his profession is not apart from life, a thing
of drudgery, but part of life, a thing of eternal service. That law may regain
for him, for each of him, its rightful status as a liberal art, as a humanity, as the
very focus and balance-wheel of men's lives together. K.L.P. A., II, 30 ( 1940).

16 Law in our Society, 6-8 (see below, p. 499). Llewellyn sometimes dis-
tinguished between the 'high philosophy of law', most of which 'gets
not only beyond law but beyond most of us' and the 'low philosophy
of law' which is simple and accessible:

It deals with how things human go round, with how men go about their
business, it roots in daily life and yields horse-sense and sometimes better-
than-horse-sense for any lawyer's daily dealing with his daily problems. It
aims to be 'philosophy' not in the sense of a discipline with a high name and
chairs in universities, but in the old sense of 'philosophy' as working human
wisdom- 'philosophy' like that of Will Rogers, Mr. Dooley and Mr. Tutt.
When it comes to law, the low 'philosophy' is not content to be about law in
the large and remote and vague; it wants to get down to cases, down to
lawyers' or judges' particular cases. It wants to be a 'philosophy' of the work
of law and legal institutions and the craftsmen of the law. (Ms, 'The Low
"Philosophy" of Law', K.L.P. B., III. 22,1 (1943).)

17 E.g. Jurisprudence, 152 (1940).

18 5-1 I (infra. at sooff). Basic to a 'horse-sense' approach is a refusal
to see things in simple ali-or-nothing terms. Thus, in respect of 'testable
truth' there is a continuum ranging from pure guess to absolute
certainty, with expert judgment backed by experience somewhere in
the middle; in respect of technology Llewellyn was fond of reminding
students that 'you don't need seven place logarithms for laying lino-
leum; jurisprudence is the art of laying linoleum' (lecture, 1958).
Whereas ultimate goals and ideals are needed to give a general sense
of direction, they cannot be expected to give detailed guidance in
specific situations; despite the enormous diversity of opinions about
values and priorities, he was often optimistic about the prospects for
consensus; for example: 'Even [in respect of] non-testable truth, most
Americans can agree on enough important goods to keep a "country"
a working whole, with some recognized agreed machinery for handling
most disagreements' (Law in Our Society, 34). On Llewellyn's optimism
in respect of judicial processes, see below, pp. 224-6.
 no t e s to c h a p t e r 9 493

19 'In the first decades of this century American liberal thought was
haunted by a fear of being remote. This was one of the sources of the
revolt against formalism.' White, Social Thought in America, 128 (cf. 33)
(1957).
20 There are several statements of the 'law-jobs theory' in addition to
chapters 10 and I I of The Cheyerw Way, notably: (i) 'The Normative,
the Legal and the Law Jobs: The job ofjuristic Method', 49 rale L. J.,
I355 (I940); (ii) My Philosophy of Law (ed. Kocoureck) I83 (I94I);
(iii) 'Law and The Social Sciences- Especially Sociology', 62 Harv.
L. Rev., 1286 (I949), reprinted in Jurisprudence: Realism in Theory and
Practice, 352 ( I962); (iv) Law in our Society. The most developed version
is to be found in (iv) which differs in a number of points of detail
from the earlier writings. The most important of these is the shift
from 'the institution of law' to 'the institution of law-government' as
his organising concept; see below, p. I79·
2I On the question whether this proposition is tautological see below,
p. 180.
22 In some versions Llewellyn listed only five categories, (ii) and (iii)
being combined. The most extensive elucidation of each of these
categories is to be found in 49 rale L. J., I375 et seq.
23 My Philosophy of Law (ed. Kocoureck), I87-8 (1941).
24 Jurisprudence, 356 (n).
25 8 Enc. Soc. Sci., 84 (1932); see also Sumner, Folkways, passim.
26 Ibid.
27 Law in Our Society, 2I.
28 Folkways, 6I-2. Cp. The Bramble Bush, 40.
29 The Bramble Bush, 40. See Merton, Social Theory and Social Structure,
especially ch. III (I949, I967).
30 'A definition both excludes and includes. It marks out a field. It makes some
matters fall inside the field; it makes some fall outside. And the exclusion
is almost always rather arbitrary. I have no desire to exclude anything
from matters legal. In one aspect law is as broad as life, and for some purposes
one will have to follow life pretty far to get the bearings of the legal matters
one is examining' (Jurisprudence, 4).
3I My Philosophy of Law, I85. The vagueness of 'institution' enabled
Llewellyn to assemble a motley list of ingredients of the 'institution of
law':

That whole is most fruitfully viewed as a going institution, and a necessary

institution, in society. And a going institution is of course never made up of
rules alone, nor of ideals alone. It may contain rules as one of its parts. In the
case of our own law, the institution contains as one of its parts a tremendous
and tremendously important body of rules, organized (quite loosely) around
49 4 notes to chap te r 9

concepts and shot through with principles. Indeed, companioning these rules
and principles of 'law' proper, there are other rules and other concepts: the
formulated techniques of'precedent', of'construction', and the like, to guide
manipulation of the first. But over and above these, the going institution of
our law contains an ideology and a body of pervasive and powerful ideals
which are largely unspoken, largely implicit, and which pass almost un-
mentioned in the books. It contains also a host of sometimes vagrant, some-
times rigid practices, of ways of doing what is done, without which such things
as rules would have no meaning in life. And it contains also a host of men, who
are an integral working portion of the whole, and are not simply persons
'subject' to some thing outside them which one can know as 'law' ('My
Philosophy of Law', 183-4).
Objection could be taken to the listing of such disparate phenomena
as rules, concepts, practices, and men as 'parts' of'institution'. We may
concede that the passage is loosely worded. But Llewellyn's conception
of the subject-matter of jurisprudence may be restated in terms which,
while retaining the gist of what he was trying to say, may be less
vulnerable to criticism: a rounded approach to jurisprudential theory
must include a coherently related set of answers to a number of
different kinds of question. Some of these answers will take the form
of recommendations about the purposes of law; others will be state-
ments about the values which are in fact pursued or assumed by
participants in the legal processes of a particular system; others will
be concerned with the nature of actual and possible instruments for
furthering these values; rules of law are among the most important
of such instruments, but they are not the only ones; other answers will
be concerned with the techniques of devising, improving and using
these instruments; others will be concerned with the actual effects on
human behaviour of particular measures and so on (see Law in Our
Society, 59, cited above, p. 184).
32 Above, p. 148.
33 Llewellyn to Hoebel, 24]anuary 1938.
34 The Law of Primitive Man, 28 ( 1954). Recently Hoe bel has formulated a
new 'working general definition' of law. See his Anthropology: The Study
of Man 506 (1972).
35 49 Tale L. ]., 1355, 1364ff. (1940); Law in Our Society, 21-2.
36 H. L.A. Hart, The Concept of Law (1961). See also J. Raz, The Concept
of a Legal System ( 1970).
37 Op. cit. 1358.
Let me therefore put 'legal', and keep it, in quotes when the reference is to that
phase of life and problem and behavior of men in groups which is set against
the economic or religious or recreational. Let me capitalize it, as Legal, when the
reference may be to the content or system or correct consequences of our high
Rules of Law. This will not wholly do my work, for much of the time Ishall
be dealing with incipient or half-way material which is beginning to be
 no t e s to c h a p t e r 9 495

distinctively 'legal', but has not yet taken on all the attributes which things
'legal' strain to acquire. I shall use some coinages to refer to one or another of
the major incipient or part-way areas. For instance, in regard to the bare
skeleton of authority and enforcement, where regularity and right are largely
lacking, I shall speak of the 'skelegal'; and where felt right is present in a
penumbra between recognizable Law and clear morality or etiquette or
decency, I shall speak of the 'jurid'. And where an incipient practice is yet
unpredictable in detail, and is interrupted, as is our own judicial practice of
distinguishing a precedent which needs to be distinguished, which our judges
waver between doing and not doing, I shall speak of 'law-wavers' which
might be in process of becoming real law-ways. All of this part-way material,
this penumbral stuff which does not answer to yes-or-no, but only to a how-
much or intensity or regularity or clarity, I can then lump as the 'legaloid',
and many things will be much easier to say clearly, and briefly, and without
misconstruction.
Llewellyn in fact hardly used these terms, but the passage in the
article does perform the function of stressing his concern to avoid
seeing law and related phenomena in black-and-white terms (such
as 'law' and 'not-law'), but rather in terms of the shades, suggested
by such terms as 'incipient' and 'penumbra'. So, too, with the
deliberately vague terms 'law-ways' and 'law-stuff', which he used
quite frequently. '"Law-ways" is used to indicate any behavior or
practices distinctively legal in character, flavor, connotation, or effect;
procedures for cleaning up trouble-cases, the use of tribunals, the
enactment of legislation, the practice of policing•... A Rule of Law
is not a law-way, not behavior, but a formulation with meaning and
authority. Whereas using such a Rule, thinking in terms of such a
Rule, observing it, applying it, construing it: these are law-ways'
(ibid., I357-!l). On rules, see below appendix B.
38 2off.; Pound, Outlines of Jurisprudence 6off (I 943).
39 Ibid.
40 Jurisprudence, 357·
4I Law in Our Society, I 12 (1956 ed.).
4::1 See below, p. 190.
43 See K.L.P. P.X. Some student papers were mimeographed and
circulated as a supplement to Law in Our Society.
44 49 Tale L. J., 1382.
45 However, it is possible to conceive of 'a group whose unification is
achieved through the reciprocal interiorization by each of each other,
in which neither a "common object" nor organizational or institu-
tional structures etc., have a primary function as a kind of group
"cement".' R. D. Laing, The Politics of Experience, ch. 4 (1967). This
work contains an interesting analysis of the psychology of 'groupness',
an aspect which Llewellyn tended to gloss over.
46 &. rel. Soia Mentschikoff Llewellyn.
49 6 notes to chap te r 9

47 For other claims made for the theory, see 49 Tale L. J., 1830. Some
people (without giving reasons) dismiss as invalid analogies between
simple groups, such as tribes, and modem industrial societies. Llewellyn
himself glossed over the problem by maintaining that the difference was
one of 'complexity'. Levi-Strauss has suggested a possible difference
which might have theoretical implications for jurisprudence:
I would say that, in comparison with our own great society, with all the great
modem societies, the societies studied by the anthropologist are in a sense
'cold' societies rather than 'hot' societies, or like clocks in relation to steam-
engines. They are societies which create the minimum of that disorder which
the physicists call 'entropy', and they tend to remain indefinitely in their
initial state, and this explains why they appear to us as static societies with
no history.
Our modem societies are not only societies which make extensive use of the
ateam-engine; structurally, they resemble the steam-engine in that they work
on the basis of a difference in potential, which finds concrete expression in
different forms of social hierarchy. Whether we call it slavery, serfdom or
class distinction is not of any fundamental importance, if we stand back and
take a broad, panoramic view of the situation. Societies like these have
managed to produce within themselves a kind of disequilibrium which they
use to create, at one and the same time, much more order - we have mech-
anized societies- and greater disorder, greater entropy, on the level of
human relations.

G. Charbonnier, Conversations with Claude Levi-Strauss (trs. J. and D.

Weightman), 33-4 (1969). For this suggestion I am indebted to Mr
Adrian Taylor, who comments:
For Levi-Strauss's account of the dynamics of interaction of social structures
and social functions forces upon our attention the question of the extent to
which the doing of the law-jobs seen as consciously intended performances of
legal systems qua systems simultaneously and by the same means and neces-
sarily bring fresh problems for future solution.

48 The best discussion by Llewellyn is in 49 Tale L. J., 1373ff. Law in Our

Society, 24-6.
49 Above, ch. 8; see also the discussion of the 'parental' model of
dispute-settlement (below, pp. 363-5).
50 Below, pp. 2oo-2, 488-g6.
51 Below, pp. 199-200, 505-12.
52 But see 'The Constitution as an Institution', 34 Col. L. Rev., I (I934).
53 See esp. 49 Tale L. J. I355·
54 A good recent example is P. S. Atiyah, Accidents, Compensation and the
Law (I 970) which shows a number of traditional probleiDS in a different
light by looking at them in the context of 'the total compensation
picture'.
 no t e s to c h a p t e r 9 497

55 49 Tale L. J., 138HZ (1940) (Llewellyn's italics).

56 Law in Our Sociery, 59·
57 Law in Our Sociery, 39-58; see also Jurisprudence, 201-10 (1941); the
treatment of the topic in Law in Our Sociery shows some development in
Llewellyn's ideas on justice. This probably occurred mainly in the
period 1953-5, when he devoted quite a lot of thought to the subject.
58 Ibid., 43·
59 Ibid., 33·
6o 0. W. Holmes, Collected Legal Papers, see below, p. 514.
61 See especially E. Cahn, The Sense cif If!justice (1949).
62 F. R. Bienenfeld, &discovery cif Justice (1947).
63 Ibid., I8-55·
64 See j. Stone, Human Law and Human Justice, 317-8 (1965), and refs.
there.
65 K.L.P.C. Series M. Lecture 6 (1955).
66 Jurisprudence, 203.
67 Lecture, op. cit. (n.65).
68 There are numerous references to natural law in Llewellyn's writings,
especially in Law in Our Sociery, 5g-65, Jurisprudence I 11-5, 48o-r;
The Common Law Tradition, 122 and 422; 'On Philosophy in American
Law', 82 U. Pa. L. &v., 205 (1934); Ms., 'Natural Law, Realism
in Law and the Problems Ahead' (1946-9), K.L.P.B., II. 25. See
also Garlan, Legal &alism and Justice, 103-8 (194I).
6g E.g., Jurisprudence, 55·
70 Ibid., II4·
7I Law in Our Society, 64.
72 E.g., Jurisprudence, 55·
73 Ibid., I 14·
74 Law in Our Sociery, 64.
75 Ibid.
76 Jurisprudence, sao; The Common Law Tradition, 421-3; Law in Our
Sociery, 6o-5.
77 Jurisprudence, 115.
78 Law in Our Sociery, 85•.
79 Ms., 'Babel versus Teamwork: jurisprudence since 1900', 5 K.L.P.B.,
III, 36 (d) (1942-3).
8o Published works include: (i) 'The Conditions for and the Aims and
Methods of Legal Research' (1929); (ii) 'Legal Tradition and Social
Science Method- A Realist's Critique' (1931); (iii) 'Behind the Law
of Divorce' (I932-3); (iv) 'introduction to Jerome Hall, Theft, Law
and Sociery, xv-xxxv (I935); (v) 'The Theory of Legal "Science"'
(1941). See below (n.8r); (vi) 'Manpower for Research', in A. Conard
(ed.), Conference on Aims and Metlwds in Legal &search (1955); (vii)
'Social Significance in Legal Problems', ibid. (I 955) ; (viii) 'On What
49 8 notes to chap te r 9

Makes Legal Research Worth-While?' (1956); (ix) Review of Michael

and Adler, Crime, Law and Social Science (1934). See also bibliography,
items 46, 7'J., 87, g8, 103, 138, 'J.32·
Manuscripts include: (a) 'Behind the Law of Divorce III' (1933);
(b) 'Jurisprudential "schools" at Columbia' (1939?); (c) 'Law and
Social Science' (193o-35); (d) 'Loom of the Law: A Theory of Jural
Sociology and Method' (1935-40); (e) 'On Robinson's Unscientific
Science of Law' (1935); (f) 'Trends in Legal Sociology' (1933-38);
(g) 'The Chicago Jury Project' (1955); (h) 'Memo. replans for Michi-
gan conference on The Aims and Methods of Legal Research' (1955).
81 'J.O N. Carolina L. &v., I-'J.3 (1941) (hereafter cited in this chapter as
Cairns).
8'J. Ibid., 6. Cf. Jurisprudm&e, 78:
But one concerned with law u a social scienu, a science of observation, must
center his thought on behavior, on the interactions between the behavior of
law-officials and the behavior of laymen. The behavior which comes chiefly
in question baa two upects: (a) the settling by somewhat regularized official
action of disputes that do not otherwise get settled; and (b) the use of some-
what regularized official pressures to get people to do (or not to do) particular
things, or to do (or not to do) what they do in particular ways- more bridly,
the directing and channeling of the conduct of people.
83 Cairns, 7.
84 Ibid., 8.
85 For Llewellyn's reservations about the uses made by some jurists of
psychological and psychoanalytic theories, see Jurisprudm&e, 105--6,
The Common Law Tradition, 12, Law in Our Society, 92-4.
86 Op. cit., n.Bo.
87 Cairns, I 3·
88 Op. cit., n.Bo.
89 34 Col. L. &v., 286 et S"J· (1934).
go Cairns, 22.
91 Ibid., 21.
92 E.g., Cairns, 2Q-I.
93 Ibid., 21.
94 Ibid., 14. Cf. Jurisprudm&e, 100.
95 Cairns, 13-4.
g6 8 Jo. Leg. Ed., 399, 421 (1956).
97 Op. cit., n.Bo, (vi).
g8 Ibid., 411.
99 E.g., Ms. fragment. K.L.P. B. II. 6, 4 (1933).
100 See below, pp. 313-21.
101 See below, pp. 356-65.
102 See generally Currie, III, 28-38.
103 Ibid., 32-4.
 no t e s to c h a p t e r 9 499

104 See n.8o, items (iii) and (a).

105 Ibid., 1281n.
ro6 Ibid.
107 R. Angell to Llewellyn, April1933• K.L.P. A. 59·
1o8 Thurman Arnold to Llewellyn, ibid. On Sarlor Resartus; seep. 421.
109 J. Hall, Theft, Law and Society (published 1955); E. A. Hoebel, The
Political Organization and Law-Ways of the Comanehe Indians. (Published
1940). See above, ch. 8; Paul W. Tappan, Delinquent Girls in Court
(1947) with a foreword by Llewellyn.
110 See below, pp. 349-53·
111 Opinion of Professor Jerome Hall, interview December 1965; confirmed
by a variety of other sources.
112 Llewellyn's main discussions of 'The Beautiful' in law are to be found
in Jurisprudenee, 171--96 (1942) and 3~ (rg6o). The Cheyenne Way,
61-2, 307--g. Ms., K.L.P.B., III 30 (on Radbruch). See, further, P.
Stein, 77 L.Q..R., 242 (1961), A. Ehrenzweig Psychoanalytic Jurisprudenee
(1971).
113 Jurisprudenee, 17r; cf. 196.
114 Nor is literary aptness a primary value in Llewellyn's aesthetics (on
which see Stein, op. cit. (n.112)). Stone, in Legal System and Lawyers'
Reasonings, 256,n. em in suggesting that Llewellyn equated 'elegantia'
with beauty.
115 Jurisprudenee, 172.
116 Ibid.
I 17 At 172-3·
118 See below, ch. 10.
119 Jurisprudenee, 195·
120 Ibid., 193.
121 Especially, Jurisprudenee, 168-7I. See further above, p. 120.
122 My Philosophy of Law, 188 (1941).
123 See below, pp. 505-12. His writings on the legal profession contain the
basic ingredients from which the theory could be further developed.
124 Above, ch. 8.
125 Below, p. 26o, 354·
126 Ibid.
127 Below, ch. 10.
128 See generally, Twining, 'Pericles and the Plumber', 83 L.(l:R., 3g6
(1967)·
129 T. Hayakawa, 18 Rutgers L. Rev., 717, 732 (1964).
130 My Philosophy of Law, 188--g.
131 At 178--gg.
132 K.L.P. B. II. 40 (1938-40?).
133 See above, p. 81.
134 See below, pp. 21o-15, 493-6.
50 0 notes to chap te r 10

I 35 The Common Law Tradition, I 79·

136 See above, 8I.
I37 Ibid.
I38 Dias, Jurisprudenc1 (2nd ed.), 477·
139 See, e.g., G. Gottlieb, The Logic ofCiwice (1968); J. Stone, Legal System
and Lawyers' Reasonings(1964); H. L.A. Hart, The Concept of Law (1961);
W. Twining, K. O'Donovan and A. Paliwala 'Ernie and the Centi-
pede', inJolowicz (ed.), The Division and Classification of the Law (1970).
I4o Jurisprudence, 57·

IO THE COMMON LAW TRADITION

I Lewis, 0. C. Llewellyn: Situational Sense and tire Judicial Process, New
York (1962) (LL.M. thesis, Columbia Law School). Of the many
published discussions of the book the following have been of particular
assistance: Becht (1962), Washington U.L.Q., 5; Clark and Trubek, 71
Tale L.J., 255 (x961); Cooperrider, 6o Mich. L. Rev., I 19 (1961);
Hayakawa, x8 Rutgers L. Rev., 717, 725-34 (1964); Lasswell, 61 Col.
L. Rev., 940 (1961); Rohan, 32 Fordham L. Rev., 51 (1963-4); Rumble,
American Legal Realism, especially 145-54, and ch. 5; Shestack, 109
U. Pa. L. Rev., 1051 (x961).
Two gaps in discussion are worth noting: first, The Common Law
Tradition was not reviewed in a single British legal periodical; secondly,
it is barely mentioned and is not discussed in Joel B. Grossman and
Joseph Tanenhaus (eds.), Frontiers of Judicial Research (196g), which
purports, inter alia, to survey work in this field. See, however, the
remarks of Richard D. Schwartz at 490.
2 MS. Llewellyn's Inquiry into Appellate Judicial Deciding (1956-7).
3 An excellent detailed summary of the book in twenty-five pages is by
Becht, op. cit. Teachers who would like their students to study The
Common Law Tradition but who feel that it would be unreasonable to
ask them to read the whole book could solve the problem by recom-
mending Becht's summary and a selection of key passages from the
original work.
4 See especially The Common Law Tradition, 3-18.
5 Ibid., 4·
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid., 28.
xo In some contexts it is not necessarily paradoxical or confused to assert:
'The rule is certain, but its application is doubtful'. For this could
mean 'it is clear which rule is the applicable one, but the rule itself is
not clear' or 'it is clear which rule is the applicable one and in what
 not e s to c h a p t e r 1 0 501

words the rule is to be formulated, but some doubt arises as to its

meaning'. But it may be paradoxical to say 'the meaning of the rule
is certain/clear, but there is some doubt as to what situations it coven'.
11 C.L. T., '9·
12 'Professor Llewellyn jumps off in mid-stream and neglects to extra-
polate upon the nature of the interrelationship between these facton,
the extent and nature of overlap, the probable varying degrees of
importance between the elements, as well as many other probleiDS
raised by mere listing'. Theodore L. Becker, Political Behavioralism and
Modern Jurisprudetwe, 63-4 (1964). See also Rumble, op. cit., 173-4.
13 Becker, Ibid.
14 See The Common Law Tradition, index under 'Grand Tradition',
'Formal Style' and 'Style'. Other important discussions of 'style'
include Jurisprudetwe, 176--g2, 215--29, 305--8, 31~22.
15 519. Cf. 'In such matters, as in all other matten in this study, I preach
neither revelation nor novelty, I preach the neglected beauV! of the obvious'
(339). This is a recurring theme of The Common Law Tradition, see e.g.,
142, 156. See further the statement in 'On Reading and Using the
Newer Jurisprudence' (1940) that: ' .•. almost nothing the newer
Jurisprudence has yet found, and little that it seeJDS likely to find
within the next few decades, will prove in any manner new, to the best
lawyen'. Jurisprudetwe, 149. Lloyd considers that the English lawyer
does not find this statement 'very encouraging'. (Introduction to Juris-
prudetwe (2nd ed.), 262). With respect, this seeiDS to place too high a
premium on novelty in jurisprudence and to give insufficient weight
to Llewellyn's stress on the neglected aspects of what the best lawyen
know already. For a sceptical comment on Llewellyn's concern with
the obvious, see Westwood, 61 Col. L. Rev., 948--55, especially 954
(1961).
16 See especially 464-5, 519n.
17 C.L.T., 36.
18 Llewellyn's discussion of the Grand Style in the nineteenth century is
rather vague, except in connection with the work of specific judges.
Contrast, for example, The Common Law Tradition, 35-41, with Juris-
prudetwe, 178--g2. On particular judges see esp. the dedication of The
Common Law Tradition 'To the undying succession of the Great Com-
mercial Judges whose work across the centuries has given living body,
toughness and inspiration to the Grand Tradition of the Common
Law', listing in the form of a dynastic succession, Holt, Mansfield,
Stowell, Blackburn, Kennedy, Hamilton and Scrutton (England},
Cowen, Hough and Learned Hand (U.S.).
19 Jurisprudence, 217 (formulated 196o).
20 C.L. T., 38. Cf. Jurisprudetwe, I8g, 303.
21 Jurisprudmce, 124-6.
50 2 notes to chap te r 10

22 C.L. T., 36, 291-309.

23 JurisJn'fldertu, 183; cp. 171-2. On legal aesthetics see above, p. 197.
24 See generally 'Remarks on the Theory of Appellate Decision', 3
Vanderbilt L. Rev., 395 (1950).
25 C.L. T., 62-120.
26 Ibid., 83.
27 Ibid., 88.
28 Ibid., 139, 440.
29 Ibid., 139.
30 See, for example, the rationale for bigamy advanced by Cockburn C. J.
in Reg. v. Allen (1873), L.R. 1 C.C.R., 367. Compare Glanville
Williams, 'Bigamy and the Third Marriage•, 13 M.L.R., 417 (1950).
31 E.g., Lord Atkin's 'neighbour principle', in Donoghul v. Stevenson [ 1932]
A.C., 562, discussed below, p. 236.
32 C.L. T., 139.
33 Ibid., 51gn.
34 See ]urisprudene1, 216-7.
35 See ibid., 176-7.
36 [1932] A.C., 562.
37 217 N.Y. 382, 111 N.E. 1050 (1916).
38 217 N.Y. 391.
39 E.g., his treatment of Langridge v. Levy 2M. and W. 519; 4 M. and W.
337 and Winterbottom v. Wright 10M. and W. rog, 587-8.
40 For examples relating to Cardozo, J., see 430, 436-42.
41 Portia:

Tarry a little, there is something else.

This bond doth give thee here no jot of blood;
The words expressly are 'a pound of flesh';
Take then, thy bond, take thou thy pound offtesh;
But, in the cutting of it, if thou dost shed
One drop of Christian blood, thy land and goods
Are, by the laws of Venice, confiscate
Unto the State of Venice.

Merchant of Venice, Act IV, Scene 1. Cf. Fisher v. Ruislip [1945], 2

All E.R., 458. Also, Twining in (1959) Sudan lAw Jo. and Reports
112-39· Cf. S. Williston, Lifo and lAw, 215-6 (1940). Ihering, Thl
Stnlggllfor lAw, preface (1877).
42 Becht, op. cit., n.x.
43 C.L.T., 59·
44 Cahn, Thl Sense of Injustice (1949), cited by Llewellyn at 6o.
45 C.L.T., 6o. Llewellyn, rather vaguely, continues: 'Wisdom will serve
well enough to indicate a goal of right decision, weighted heavily with
and for the future'; see 6o-1 and 46-7, and Thl Chlyennl Way at 3o8-g,
 not e s to c h a p t e r 1 0 503

where the idea of adopting the viewpoint of the good of 'The Entirety'
is associated with wisdom.
46 C.L. T., 245, 268-77-
47 See above, pp. 185-8.
48 Rohan, 'The Common Law Tradition: Situation Sense, Subjectivism
or Just-Result jurisprudence?', 32 Fordham L. Rev., 51, 56 (1963-4).
49 E.g., Mermin, ]urisprudenc1 and Stall&rqft, 115 and 240 (1g63).
50 C.L. T., 6o-1.
51 Quoted at 122; cf. 222:
I remember the scorn which Konenkov, whose chisel woke in wood the beauty
asleep in it, felt for Mestrovic, who wreaked his will upon a block of wood as
if it had been grainless granite.... Now as one reads the cases ••• it seems to
me hard to miss this aura, this atmosphere not only of hesitance to upset the
settled or to embark on an uncharted sea, but of a tlesirt to mow in tiG&ordo.nct
with tht matmal as Will as within it, to CtJrlll with th4 grain likt Konmkov, to rtwal
tht latmt rathtr 1111111 to impoJI MW form, much Ius to oblruiU an outside will
(italics added).

The quotation is said to be taken from Goldschmidt, preface to

Kritik du Entwurjs einu HtJfllklsgtset;:buchs. Cf. Sinzheimer, Jews Who
Were Classical Figures in German Legal Scholarship ( 1938) (Extract on
Goldschmidt, translated by Llewellyn and included in materials for
Law in Our Society).
52 'Metaphysics' is used here in the sense of 'relating to what is conceived
of as transcendent, supersensible or transcendental' (Webster's Third
New International Dictionary). Mermin uses 'mystical' and 'metaphysical';
op. cit., 115, 240
53 C.L. T., 127 (Llewellyn's italics). Llewellyn's espousal of the terminology
of 'immanent' and 'rightness' needs to be considered in the light of
his general attitude to Natural Law (see above, .t'P· 123-6, 185-8).
54 71 Tale L. J., 255 (1961).
55 61 Col. L. &v., 946 (1961).
56 On which see McDougal, Studies in World Public Order (196o).
57 See also Rohan, op. cit., 56-6o.
58 C.L. T., 277.
59 See above, n.53.
6o See above, p. 188ff.
61 See, e.g., Llewellyn's discussion of Levi's Introduction to Legal &asoning
(1949), 125-6, and of McPherson v. Buick, ibid., and 43o-7.
62 Ibid. See also 452-3.
63 C.L. T., 24-5, and 226-32.
64 Ibid., 277.
65 See Law in Our Society, p. 85.
66 E.g., 492, 203, 504-5.
50 4 notes to chap te r 10

67 C.L. T., 494·

68 Ibid., 504.
6g Ibid., 123.
70 Ibid., 128.
71 Ibid., see especially 12 1.
72 Ibid., 151.
73 Ibid., 157; cf. 207, 'new sense of and for the significant situation'.
74 Ibid., 502.
75 E.g. ibid., 431.
76 Rohan, op. cit., 56-6o.
77 C.L. T., 51·
78 In Llewellyn's usage the terms 'principle' and 'policy' both refer to
standards whiCO'.h are not 'rules of thumb' (see below, appendix B) and
are not clearly differentiated. However, a distinction suggested by
Dworkin is a useful starting-point for a more refined analysis and,
where relevant, I have tried to observe this distinction.
I call a 'policy' that kind of standard that sets out a goal to be reached,
generally an improvement in some economic, political or social feature of the
community (though some goals are negative, in that they stipulate that some
present feature is to be protected from adverse change). I call a 'principle' a
standard that is to be observed, not because it will advance or secure an
economic political or social situation deemed desirable but because it is a
requirement of justice or fairness or some other dimension of morality.

R. Dworkin, 'Is Law a System of Rules?', in R. Summers (ed.), Essays

in ugal Philosophy, 34-5 (1968),
79 At 21o-2, 249--50, 43o-7; ugniti, 186 App. Div. 105, 173 N.Y. Supp.
814 (1st Dept. 1919).
8o C.L. T., 436, 432.
81 Op. cit., at 59·
82 C.L. T., 212 (Llewellyn's italics).
83 Ibid.
84 Op. cit., 59·
85 C.L. T., 54-6.
86 Ibid., 277.
87 These distinctions can be re-stated as follows: There is no necessary
inconsistency involved in {i) reporting that Judge X exhibited the use
of situation sense in his opinion in that he: (a) articulated potentially
relevant policies and (b) classified the facts under a general situational
category; and (ii) expressing (a) approval or (b) disapproval of the
policies articulated; and (iii) expressing the opinion that the articulated
policies were (a) relevant or (b) irrelevant; and (iv) expressing the
opinion that the general situational category was (a) appropriate or
{b) inappropriate; and (v) expressing the view that a particular
 not e s to c h a p t e r 1 0 505

precedent technique employed by Judge X was: (a) legitimate or

(b) illegitimate; and (vi) expressing (a) approval or (b) disapproval of
the result in the case (or Judge X's conclusion).
88 C.L.T., 122, cited above, p. 217.
8g Above, p. 96.
go (1914) rale Review 250, cited above, p. 31.
91 The information about Goldschmidt in the text is derived from the
unpublished translation by Llewellyn of a chapter of a work by Hugo
Sinzheimer, the English title of which is Jews wlw were Classical Figures
in German Legal Sclwlarship (1938). The passage from Goldschmidt is
quoted by Sinzheimer; since the wording of Llewellyn's translation is
different from the wording in TM Common lAw Tradition, and since this
passage has occasioned more comment than any other part of the
book, it is worth giving this version in full:
Every problem situation of ordinary life, so far as it is accessible to the order
of legal regulation, carries within itself its fitting natural rule of right law, its
jus aequum. Thus there is a true natural law immanent in the conditions; it is
not imaginary, it is not created out of empty reason, but it rests upon the real
foundation of the nature of man when that is recognized by reason, and of his
life conditions for the time being, so that it is of course not eternal and un-
changeable and everywhere the same. The highest task of law-making rests
in the discovery and implementation of this immanent right law. In this sense
what we know as sources of law are never truly creative but on the contrary
in essence only tools of discovery. For years I have been dominated by the
conviction, and it has been constantly reinforced, that the controlling basic
ideas of every body of legal doctrine have as their natural and necessary
foundation the exploration of life conditions and problem situations whether
economic or moral; I have therefore striven to find in commercial relations
and in the needs of commerce a source for recognition of the law actually in
force.
(See above, n.51.)
92 At one stage Llewellyn tried to revive Mansfield's device of using
juries of merchants; Revised Uniform Sales Act, Second Drrift, 251-3 ( 1941).
93 C.L. T., 245·
94 A further question might be: a dispute suggests a deviation from
normality: what is normality in this kind of situation?
95 C.L.T., 427-8. On 'narrow categories' see above, pp. 136-7.
96 Ibid., 450.
97 Ibid., 261; cf. 403.
98 Ibid., 266.
99 The Bramble Bush, 125. Cf. The Common Law Tradition, 397·
100 E.g.,Jurisprudmce, 176-7. But in an obscure passage Llewellyn suggests
that the Grand Style and the style of reason might sometimes be
differentiated (at 465). He does not seem to have observed· such a
distinction himself.
50 6 notes to chap te r 10

IOI '&ason I use to lap over both [wisdom and situation sense] and to
include as well the conscious use of the court's best powers to be
articulate, especially about wisdom and guidance in the result' (at 6I).
I02 Ibid., 324. See also Law in Our Society; and an address on the Chicago
Jury Project, K.L.P. B. IV. 1. (1955).
I03 C.L.T., 267.
104 Ibsen, The Wild Duck.
105 C.L.T., 365; 52 Harv. L.&v., 703 (1939).
1o6 E.g., C.L. T., 264, 268.
107 Ibid., 266.
108 Ibid., 268.
109 J. Bentham, The Handbook of Politi&al Fallacies, I, ch. 2 (ed. Larrabee,
1952).
I IO See generally, J. L. Montrose, 'The Language of, and a Notation for,
the Doctrine of Precedent', 2 W. Aust. Ann L. R., 30 I and 504 (I 952-3).
111 See, further, Gottlieb's distinction between rules of justification and
rules of guidance, The Logi& of Choi&e ( 1968).
112 C.L.T., 131; also 56.
113 See ibid., 26-7, 13I-2, 28g-g1.
11 4 E.g., ibid., 56.
115 Especially ibid., 62-120, 521-35.
116 3 Enc. Soc. Sci., 249 (I931).
117 The Bramble Bush, 48.
118 Julius Stone (1), 'The Ratio of the Ratio Decidendi', 22 M.L.R., 597
(1959), (ii) Legal System and Lawyers' &asonings, ch. 7 (1964).
119 Ibid. (ii) at 26g-7o; A. L. Goodhart, 'Determining the Ratio Decidendi
of a Case', 40 rate L. J., 161 (1930), Essays in Jurisprudence and the
Common Law (1931). For a recent discussion of this controversy see
Gottlieb, The Logi& of Choi&e, ch. VI ( 1968).
120 The Bramble Bush, 48.
121 Ch. V of the original Storrs Lectures was entitled 'Work with the
Frozen Word'.
122 The Bramble Bush, 4 7.
123 [1932] A.C. 562, 578-9·
124 Ibid., 599·
I25 Ibid., 583.
126 Ibid., 580.
127 Discussed by Heuston, 'Donoghue v. Stevenson in Retrospect', 20 M.L.R.,
I, 5-9 ( 1957).
128 See ibid., 14-23.
129 See Twining, O'Donovan and Paliwala, 'Ernie and the Centipede', in
Jolowicz (ed.), The Classification and Division of the Law (1970).
I30 Especially 75-92·
131 C.L.T., 77· Although the passage is headed 'A Selection of Available
 not e s to c h a p t e r 1 0 507

Impeceabk Precedent Techniques', it includes a number branded by

Llewellyn as 'illegitimate' (85-6).
132 Ibid., 87.
133 Ibid., 99 (Llewellyn's italics).
134 Ibid., 92.
135 Becht, op. cit., 12.
136 C.L. T., 76, 91.
137 See generally R. Cross, Precedent in English Law (2nd ed. 1968) passim.
This work deals extensively with doctrine and somewhat erratically
with techniques and practice.
138 [1966] 1 W.L.R., 1234.
139 Lord Atkin cited Oliver v. Saddkr & Co. (1929] A.C. 584 as supporting
his view, and considered that 'I need only mention to distinguish'
Caledonian Ry. Co. v. Mulholland or Warwick [18g8] A.C. 216 and
Cavalier v Pope [1go6] A.C. 428.
140 E.g., The Bramble Bush, 78 ff.
141 Beem, 7 U. Chi. L. Sch. Record, 30 (1958).
142 Ms., K.L.P. B. VI. 2.
143 The Brambk Bush, 78--g.
144 C.L. T., 371.
145 Llewellyn Lectures, 1958.
146 The Brambk Bush, 19·
147 On 'Dogmatics', see Law in Our Society, Lecture 14.
148 See, e.g., Bodenheimer, Jurisprudence, 14o-3 (1962), Stone, Legal System
and Lawyers' Reasonings, 254 (1964), Paton, Jurisprudence (3rd ed.), 218
(1964)·
149 Appendix C, 529-30. This is an abbreviated version of 3 Van. L. Rev.,
395 (1950), one of Llewellyn's best articles (q.v.).
150 C.L. T., 373-4·
151 Ibid., 372.
152 Jurisprudence Lectures, 1958, lecture 5 (author's notes).
153 The Bramble Bush, ~· One of the basic flaws of some theories of the
ratio decidmdi (in the sense of the rule(s) that a case can be made to
stand for) is that they assume that 'the' ratio can be extracted by reading
the case in isolation. The weakness in this assumption is brought out if
one considers the question: is the ratio decidendi of Donoghue v. Stevenson
the same in 1972 as it was in 1932?
154 3 Vand. L. Rev., 395, at 396 (1950).
155 Ibid., 399· cr. The Common Law Tradition, 267.
156 C.L.T., Iog. cr. gg, quoted above at P· 237·
157 Especially 64-73. 91-120, 135-54· 158-77, 404-61, 46!)-507.
158 Jurisprudence, 82-3 (1931).
159 Op. cit., ch. 1, n.4.
160 C.L. T., 355·
50 8 notes to chap te r 10

161 Described at 264-8.

162 C.L.T., 355, and see generally 355-62.
163 Ibid.
164 Ibid., 357·
165 29 U. Chi. L. Rev., 627, 629 (1962).
166 Cf., e.g., Levi, Introduction to ugal &asoning (1949)·
167 C.L. T., 158.
168 Jurisprudence, 498-g (criticising talk about 'the administrative process').
169 E.g., 17-8.
170 The Nature of the Judicial Process, 164 (1921) cited, C.L.T., 25n.
17I The Growth of the Law, 6o (I924), cited at ibid.
I72 C.L.T.,345.
I73 Ibid., 25n.
I74 Ibid., 2m. See also I8g-go.
I75 The 'Theory of Rules', K.L.P. B. II. 40. Ch. V. 30 (I938-4o).
I76 See, e.g., 356-7. Cf. Mentschikoff:

He read cases for their narrow holdings (the facts, precise legal issue and
result), testing whether the courts were doing what doctrine seemingly re-
quired. The objectives of this analysis were, first, an accurate statement of the
operative law; second, a te;ting of the relation between that law and the life
situation it encompasses; third, an evaluation of the policy this reflected; and
finally, a decision as to what the law ought to be, and its statement in a well-
drafted legislative or judicial rule. 9 Int. Enc. Soc. Sci, 440 (xg68).

I77 C.L.T., 47o-2.

I78 Ibid., 403.
I 79 Cf. the strictures of Glendon Schubert on 'the legal realists' in 'The
Future of Public Law', 34 Geo. Wash. L. Rev., 593,601 (I966):

The realists, with rare exceptions, such as Walter Wheeler Cook and Under-
hill Moore, had neither theory nor methods; Llewellynisms about 'getting at'
facts and 'polishing them' until they 'shone' were nothing more than the
advocacy of barefoot empiricism. The contribution of the realists lay in the
mood they created, through the attention attracted by the iconoclastic essays
that some of them wrote; but lacking the technical training to do scientific
research, they rarely followed through with the substantive findings to con-
firm (or refute) their often provocative, and sometimes brilliant, cues and
hunches. Most of their work remained at the verbal level, in perfect harmony
with the traditions of the profession of which they were a part.

These remarks may have some justification when applied to Llewellyn,

but, as Rumble pointed out (op. cit., I7o-5) they are somewhat over-
stated.
I So C.L. T., 35-45· See also Jurisprudence, I 78-So.
I8I Ibid. See Pound, The Formative Era of American Law (I939)·
 not e s to c h a p t e r 1 0 509

182 Such generalizations need to be treated with caution; see Hurst, TM

Growth of Atnlriean Law: TM Law Makers, 18s-9 (1gso).
183 Wetter, op. cit., 6s.
184 S. Mermin, ]urisprudmcl and Stallcrtift, 1oo-1 (1963).
18s I. MacNeil toW. Rumble, quoted by Rumble, op. cit., 212-3.
186 C. Breitel, 61 Col. L. &v., 931 (1961). P. Kurland, 28 U. Chi. L. &v.,
S8o (1961).
187 C.L.T., so.
188 Ibid., 34Q-1.
18g Ibid., 17-8.
190 See also ibid., 18o,
191 Ibid., 37-8.
192 Jurisprudence, 70 (1931), TM Bramble Bush, 68.
193 C.L. T., 36s.
194 The classic essay is Pollock, 'Judicial Caution and judicial Valour', 4S
L.Q;R., 293 ( 1929); see also Denning and Asquith L.JJ., in Candler v.
Crt1118, Christmas [19s1] 2 K.B. 164.
19S C.L. T., 2S·
196 Ibid.
197 Ibid.
198 Dickinson, 79 U. Pa. L. &v., IOS2, toSs (1931). See Rumble, op. cit., go
It seq. Dickinson's criticism is specifically levelled against Frank's
alleged view that every case is unique.
199 C.L. T., 186.
200 Ibid., 18s.
201 Ibid., t8s-6.
202 Wash. U.L.Q., 64, 71 (1962).
203 Once again this assumes a consensus about values; see above, p. 219.
204 C.L. T., 3S2 ff.
2os Ibid., 382 ff.
2o6 Ibid., 236 ff.
207 Ibid., 2s6 ff.
2o8 E.g. 191; cf. 29 U. Chi. L. &v., 627, 629-30.
209 Cf. 'Oral or written, shun the subtle. It never persuades. Subtle argument
may do for justification; but first persuade!' (Llewellyn, 'Materials on
Legal Argument', viii, K.L.P. N.2 (19s7)).
210 C.L. T., 241. Winning the case is the advocate's job, improving the law
is for the court, but there is, and should be, a very high degree of
compatibility between the two roles. Llewellyn considered it quite
proper for a court to adopt part of an advocate's argument as its own;
similarly he strongly commended the practice of a superior court
adopting passages from a majority opinion of the lower court when
affirming, or from a dissenting opinion when reversing: 'I say the device
is deft. When a fitting occasion offers, it saves obvious time. It runs
51 0 notes to chap te r 10

fiat free of cost. It capitalizes what is sometimes superb skill. It builds

morak below as does no other device available to a supreme tribunal • • •' (3 I 8).
211 C.L.T., 26-7, 28g.
2I2 Prediction of likely outcome is, of course, an important part of deciding
whether or not to pursue, or to contest, an appeal; analytically this is
part of the counselling role, although in practice the person acting as
advocate may be very much concerned with it.
2 I3 C.L. T., 383. cr. Jurisprudetr&e, 323-36.
214 Ibid., 345--62.
215 Ibid., 349·
216 Ibid., 361-2.
217 See also ]urisprudetr&e, 336-43, and 'A Lecture on Appellate Advocacy',
29 U. Chi. L. Rev., 627 (I962).
218 C.L.T., 239n.
219 Ibid., 250, 258.
220 Ibid., 237.
221 Ibid., 238.
222 Ibid.
223 Ibid.
224 See especially K.L.P. N.l. 6 and II.
225 Ibid. The ABA's. Canons of Professional Ethics were adopted in 1go8,
but have been amended from time to time.
226 Materials on Legal Argument, K.L.P. N.I.b. at 1 (1957).
227 Ibid.
228 C.L. T., 85--6, 45off; above, p. 237.
229 C.L. T., 559·
230 Llewellyn's principal references were to Wiener, Effective Appellate
Advocacy (1950); see also works cited in 29 U. Chi. L. Rev., 627, 628
(1962). Other books on advocacy which were found on Llewellyn's
bookshelves included B.K. and W.F. Elliott, The Work of the Advocate
(1911) and G. Rosman (ed.), Advocacy and the King's English (196o).
E. A. Parry, The Seven Lamps of Advocacy (1923), at 76-7, makes state-
ments strikingly similar to Llewellyn's, e.g., 'Judgment inspires a
man to translate good sense into right action' (75).

An advocate ofjudgment has the power of gathering up the scattered threads of

facts and weaving them into a pattern surrounding and emphasising the
central point of the case. In every case there is one commanding theory, to the
proof of which all the facts must be skilfully marshalled. An advocate with
one point has infinitely greater chances than an advocate with twenty
points (?6-7)

cr. also Sokol, Language and Litigation (1967): 'A properly phrased issue
should meet three criteria: ( 1) it should be concrete and thus applicable
to the case being argued and no other; (2) it should suggest its own answer
 not e s to c h a p t e r 1 0 511

and (3) it should produce an overall effect and thus have a tone' (I57).
23I C.L. T., 238.
232 Ibid., 239·
233 Ibid., I97, and 'Materials on Legal Argument', passim.
234 C.L. T., 239·
235 E.g., C. Breitel, 6I Col. L. Rev., 935 (I96I); C. Desmond, 36 N.r.U.L.
Rev., 529, 53 I (I96I); J. Shestack, Iog U. Pa. L. Rev., I05I (I96I).
236 C.L.T., 58.
237 On the need for caution in evaluating claims for new ventures in
teaching, see Rita James Simon, 'An Evaluation of the Effectiveness of
Some Curriculum Innovations in Law Schools', 2 Jo. Applied
Behavioral Scien&e, 2 I !r-37 (I 966) ; extracts are reprinted in Simon, 1M
Sociology of Law (I968) at 573 ff. Simon reports a lack of significant
results discernible from a series of courses sponsored by the National
Council of Legal Clinics.
238 E.g., 'What is ••• needed is men-a bench-right-minded, learned,
careful, wise, to find and voice from among the still fluid materials of
the legal sun the answer which will satisfy, and which will render
semi-solid one more point, as a basis for further growth' (I85).
239 It is worth noting that most of Llewellyn's models made their mark as
commercial judges.
240 For a valuable exercise in analysing the use of authorities by a single
court over a period of a year (California Supreme Court, I 950), see J.
Merryman, 'The Authority of Authority', 6 Stanford L. Rev., 6 I 3 (I 954).
24I J. Gillis Wetter, 1M Styles of Appellate Judicial Opinions (Ig6o), discussed
by Llewellyn at 465ft'.
242 It is outside the scope of the present discussion to summarise his
conclusions, but it is interesting to note that his own research did not
provide confirmation of Llewellyn's contention that there had been in
American legal history a cycle of Grand Style followed by Formal
Style followed by a resurgence of the Grand Style; Wetter suggests
that systematic research would reveal a rather more complex picture.
Furthermore, he hints that in his view American state appellate courts
'give the appearance of a prevalent judicial decadence', which is not
easy to reconcile with Llewellyn's vision of a renaissance of the Grand
Style. Wetter also reports:
My admittedly limited research has not substantiated the correctness of a
theory of three successive 'styles' in American appellate courts possessing the
characteristics ascribed to them by Llewellyn; yet I have found the idea
interesting and worth exploring. A study of the California Supreme Court in
the years 1855, 1905 and 1955 will show the prevalence of three radically
different styles, and will reveal how within fifty year periods, new, uniform
craft-traditions have become established in particular courts. But they do not
all display the features described by Llewellyn (64-5).
51 2 notes to chap te r 10

243 C.L. T., 75·

244 For Llewellyn's views on the value of signed opinions, see C.L. T., 35,
429·
245 28 U. Chi. L. Rev., 580 (1961).
246 Ex. rei. the late Professor Mark de Wolfe Howe, interview June 1964.
247 71 Tale L. ]., 240. This was a moderate substitute for the kind of
critique that might have been expected of Frank, had he been alive
to review the work. Some contemporary reactions to The Common Law
Tradition, notably the discussion by Clark and Trubeck, reflect concern
with 'the neutral principles' controversy which followed on the pub-
lication of Herbert Wechsler's article 'Toward Neutral Principles of
Constitutional Law', 73 Harv. L. Rev., 1 (1959). Whereas The Common
Law Tradition was primarily oriented to private law disputes in the
state courts, the 'neutral principles' debate was about the approach
to public law issues by the federal courts. Judge Clark was an opponent
of the 'neutral principles' idea and of the ideas of judicial restraint
espoused by Mr Justice Frankfurter. He read The Common Law
Tradition as providing support for the opposition (Ex. rei. Professor
David Trubeck; this is confirmed by a letter from Clark to Llewellyn,
19 January 1962, K.L.P., A.II. 2. ee.). Llewellyn only touched on
'the neutral principles' debate very briefly (389) but it is unlikely
that he would have sided with Wechsler. It is, however, fair to say
that The Common Law Tradition does not face up to such questions as: is
the Supreme Court an appropriate decision-making body to attempt
to solve problems of desegregation or re-apportionment? When a judge
of The Supreme Court feels that he is being asked to resolve issues
which should be determined by some other institution, how should he
behave? Llewellyn may not have stressed the extent to which Formal
Style arguments have been used as a means of 'begging' questions by
judges who wished, sometimes as a matter of deliberate policy, to limit
their role (actual or apparent or both) as far as they could. For a recent
discussion of 'judicial restraint', see L. Jaffe, English and American Judges
as Lawmakers (1970).
248 Eg., Becker, Mermin, Moskowitz, Schubert, Hayakawa, and to a
lesser extent Rumble, op. cit.
249 The book was also a vehicle for more personal self-expression, as this
manuscript soliloquy confirms:
I have been trying to get into words my own picture of the piece of me I
like, as evidenced in the book. It is very hard to grapple onto.
Maybe the first three pieces are three faiths: in goodness, in the need for
drive, and in forgiveness. I think if you put these together they make a
laboring craftsman who is as proud as he is humble.
Maybe this is what the book has tried to do.
But if the book is to convey its message, somebody from inside must echo
 not e s to c h a p t e r 1 1 513

Loughran: 'It reads as if you had been present at the consultations'- or the
like. Schaefer will say something of the kind; and Fuld may. But it would
come best from someone completely outside the scope of the inquiry••••
I do think that in this book I have produced a new genre of literature: the
work and flavor of an American Supreme Court in Action. This has never
been done, and I think it as interesting a literary technique as Ibsen's begin-
ning of a drama two-third's through (ms., K.L.P.).

!.150 One of Llewellyn's former pupils has underlined the point that to talk
of 'the bar' is to conceal the enormous variety within the U.S. legal
profession: Carlin, Lawyers on Their Own (Ig6!.!).
!.15I E.g., the treatment of'the steadying factors', and the overconcentration
on cases 'worth appealing'.
!.!52 C.L.T., I79·

I I THE GENESIS OF THE UNIFORM COMMERCIAL CODE

IThe main sources of this chapter are the very extensive collection of
papers in K.L.P., J, the Ig62 text of the Uniform Commercial Code
and the annual Handbook of the National Cotiference of Commissioners on
Uniform State Laws (hereafter cited as Handbook). Only limited use has
been made of the very extensive secondary literature on the Code.
Where possible I have checked points of detail with individuals who were
connected with the Code project, notably Professors Soia Mentschikoff,
Allison Dunham, and Grant Gilmore. However, errors of fact and
expressions of opinion are entirely my responsibility.
2 Article I. General provisions
2. Sales
3· Commercial Paper
4· Bank Deposits and Collections
S· Letters of Credit
6. Bulk Transfers
7· Warehouse Receipts, Bills of Lading and Other Documents
of Title
8. Investment Securities
g. Secured Transactions, Sales of Accounts, Contract Rights
and Chattel Paper
ro. Effective Date and Repealer.
3 M. Ezer, UnifOrm Commercial Code Bibliography (Ig66). This has been kept
up to date annually.
4 Ibid., preface (rg6g).
5 See, e.g., W. Hawkland, A Transactional Guide to the Uniform Commercial
Code (I964); S. Mentschikoff, Cases on Commercial Transactions (Ig68);
G. Gilmore, Securi!)' Interests in Personal Property (I965).
51 4 notes to chap te r 11

6 Documentary sources on the Code, unpublished as well as published,

give a very incomplete picture of this aspect of its history. This is largely
because many disagreements were ironed out and decisions taken
through informal oral communications of which no official record was
kept. Indeed, sometimes the documentary sources can be quite mis-
leading. It is to be hoped that some of the leading participants will
record their reminiscences of the internal politics of the project for the
benefit of posterity.
7 E.g., Gilmore, 'In Memoriam: Karl Llewellyn', 71 Tale L.J., 8I3, 8I4
(I962).
8 F. Wallach, Introduction to European Commercial Law, 42 (1953).
9 Franklin, I6 Law and Contemporary Problems, 330 ff. (I95I).
10 Mooney, 'Old Kontract Principles and Karl's New Kode', I I Vill4nova
L. &v., 2I3 (I966).
I I E.g., Why should your state enact the Uniform Commercial Cotk? ( I958).
I2 36A.B.A.J.,4I9(I950).
13 E.g., 3 American Business Law Journal, I37 (I965) (editorial note to an
article by Schnader entitled 'The Permanent Editorial Board for the
Uniform Commercial Code: Can it Accomplish its Object?'). Allowance
must be made for the public relations functions of some of these clahns.
See, further, below p. 286ff.
I4 On the NCC and the ALI, see generally W. D. LewiS, 'History of the
American Law Institute and The First Restatement of the Law', in
American Law Institute, &statement in the Courts (I945); The American
Law Institute Proceedings, vol. I (I923); H. Goodrich, 'Story of the
American Law Institute', Wash. U.L.Q., 283 (I95I); Annual Handbook
of the National Coriference of Commissioners on Uniform Laws; A. Dunham,
'A History of the National Conference of Commissioners on Uniform
State Laws', 30 L. and C.P., 233 (I965). W. Hurst, The Growth of
American Law: the Law Makers, passim (I950). For further references see
F. Klein, Judicial Administration and the Legal Profession (I963).
I5 In its early years the scope of the work of the NCC was limited by the
view that it should restrict itself to areas 'where Congress had no
jurisdiction'; at that period the power of Congress to regulate interstate
commerce was narrowly interpreted. Dunham, op. cit., 236 et seq.
16 Adapted from R. Braucher, 58 Col. L. &v., 7gB, 799 (I958).
17 Ibid.
18 A.L.I., Proceedings, vol. I, part I, 1-109 (I923). The reporters were
Joseph Beale, Benjamin Cardozo, Albert Kales (who died shortly after
appointment), Samuel Williston and William Draper Lewis. Among
those appointed as 'critics' were Victor Morawetz, Roscoe Pound,
Harlan F. Stone, John H. Wigmore and R. C. Leffingwell. Ibid.,
part 2, 4-5.
19 In the foreword to the Account of the Proceedings at the organization of
 not e s to c h a p t e r 1 1 515

the Institute in Washington D.C. on 23 February I923 (A.L.I., Pro-

ceedings vol. I, part 2), the history of the Institute is traced back directly
to Hohfeld's paper, 'A Vital School ofJurisprudence and Law', read at
the AALS meeting in I 914, and to a paper by Beale. The project for 'the
betterment oflaw' is said to have emanated from Hohfeld's paper.
20 For a good critical discussion of realist attacks on the Restatement, see
Merryman, 'The Authority of Authority', 6 Stanford L. Rev., 6I3 (I954).
2I Lewis, op. cit. (note I4), (at 8 and 20) suggests that the policy of the
Restatement was, when in doubt, to predict how the courts would decide
in fact in a given situation. On the other hand, much of the discussion
was in terms of 'betterment of the law', and Lewis suggests that the
criterion was the most desirable solution. It may be that Lewis, like
Llewellyn, was optimistic that the courts, if given the chance, would tend
to choose the 'better' solution.
22 E.g., A.L.I., Prouedings, I, 26-8 (1923).
23 Ibid., II, I I2.
24 Election to individual membership of the ALI is widely regarded as a
mark of distinction. Moreover, provision was made for ex officio member-
ship for the chiefjustice of each state, for deans of recognised law schools,
and for a number of other legal dignitaries. This ensured that a large
number of holders of key positions were officially associated with, and
made aware of, the Institute's activities.
25 See especially, Report and Second Draft, The Revised Uniform Sales Act
(I941); Handbooks (I937-41); K.L.P. J. I-III (which includes an un-
finished draft of a history of the RUSA by Llewellyn).
26 Handbook, 46g (1938).
27 H.R., I619 (1937).
28 Report of Special Committee on Federal Sales Bill of the Merchtmts' Association
of New Tork (18 February I937). K.L.P.,J. I.
29 H.R., 7824 (1937).
30 H.R.,8176(1940).
3I 'The Needed Federal Sales Act', 26 Va. L. Rev., 558-71 (1940).
32 Report of Chairman of the section on Uniform Commercial Acts, 2,
K.L.P.,J. I. 4 (1938). Llewellyn was the chairman.
33 Schnader to Llewellyn, 27 October 1937, K.L.P.,J. XXV I.
34 Ibid.
35 Handbook, 58 (I94o).
36 K.L.P., J. II, I (the most important of these is quoted at length below,
Appendix E.)
37 Revised Uniform Sales Act - Second Drrift, 4 (I 94I ).
38 Revised Uniform Sales Act-Second Draft (Text and Comments), 4 (1941).
K.L.P.,J, II, 2.
39 Ibid.
51 6 notes to chap te r 11

40 E.g., Nussbaum to Llewellyn, 5 May I942. K.L.P.,J. XXV, 6. Corbin,

loc. cit. (below, note 41).
41 Corbin, 'A Tribute to Karl Llewellyn', 8 Tale Law Report No. !l, IO
(1962). Also MS, 'An Account by Arthur L. Corbin of his association
with Karl N. Llewellyn', 8 (I965).
42 Memo. to Committee on Scope and Program. K.L.P.,J, II, I (1940).
43 Handbook, 4I (I94I). Schnader was, at the time, a Vice-President of the
ALI as well as President of the NCC.
44 The matter was finally resolved in favour of continuing at the annual
meeting in May I 944 when a decision of the executive committee to this
effect was ratified.
45 K.L.P.,J, VI (1944)· I, b, I4.
46 See below, p. 285ff.
47 K.L.P.,J, V (1943). 2, K, 2.
48 William Draper Lewis in his annual report to the ALI said of the
Revised Uniform Sales Act: 'In all my experience I have never seen an
Act prepared with more thorough discussion of the problems dealt with
and with greater care to express with clarity the conclusions reached.'
K.L.P., J, VI, 2, K, 14 (I944)·
49 Program for cooperative Preparation of the Proposed Uniform Com-
mercial Code by the American Law Institute and the National Con-
ference of Commissioners on Uniform State Laws, 1 December 1944.
K.L.P.,J, IX (1947). 1, b.
50 This board was subsequently enlarged. William F. Goodrich acted as
chahman.
51 Up to 1949, in addition to Llewellyn the principal reporters and their
main concerns were Charles Bunn (bulk transfers), Allison Dunham
(secured transactions}, Grant Gilmore (secured transactions}, Friedrich
Kessler (letters of credit and foreign banking), Fairfax Leary (bank
collections and commercial paper), Soia Mentschikoff (sales and
investment securities}, William L. Prosser (commercial paper}, Louis B.
Schwartz (warehouse receipts and bills oflading).
52 K.L.P., J, VI, I, h (I944) printed (with slight variations) in W. D.
Lewis Report to ALI Council (I946) K.L.P.,J, VIII, I, c.
53 According to Soia Mentschikoff Llewellyn there was only one major
disagreement between Schnader and Llewellyn in the period before the
Editorial Board was enlarged. In 1952 Schnader was anxious to conclude
the project, but Llewellyn insisted that the Code was not ready. Eventu-
ally, after a heated dispute, Llewellyn got his way.
54 Ex rei. Soia MentschikoffLlewellyn.
55 Ibid.
56 S. Williston, 'The Law of Sales in the Proposed Uniform Commercial
Code', 63 Harv. L. Rev., 561 (1950). Williston was at first reluctant to
express his opposition publicly. This reluctance might be attributed in
 not e s to c h a p t e r 1 1 517

part to the fact that he could have been accused of having an emotional
vested interest in the survival of the act which he had drafted. In his
article he was careful to point out that he had no pecuniary interest.
Williston was not reputed to be possessive about his ideas and the reasons
he articulated were consistent with his general approach and attitudes.
57 Cf. R. Schlesinger, I, NTLRC Report, 94-5 (I955)·
58 Op. cit. (n.56), at 565.
59 'We are not drawing the statute for the experts themselves; we are
trying to draw it for the unillumined, ordinary guy of the bar, and, as I
said earlier, we find that he can read our statute while he has trouble
with the other.' Llewellyn, Address to the Ohio State Bar Assoc.,
27 May I950, 24. K.L.P., J, XII, I, q. In this address Llewellyn
purported to answer Williston's principal criticisms. For Llewellyn's
aspirations to make the Code, and law in general, more intelligible to
ordinary practitioners, and sometimes laymen, see appendix E. How
far this particular objective was achieved is debatable.
6o A. L. Corbin, 'The Uniform Commercial Code- Sales; Should it be
Enacted?', 59 Tale L.J., 82I (I950).
6I See especially I5 NTUL Rev., I 59, at I65 et seq. (I938).
62 Op. cit. n. 6o, at 822n.
63 E.g., Revised Uniform Sales Act- Second Draft, 7ff (1941).
64 Letter Corbin to Twining, October 1965.
65 K.L.P.,J, XXV (1949).
66 There were some individuals who were persistent critics of the U.C.C.
The most notable of these was Professor Frederick K. Beutel of Nebraska
(see, e.g., 61 Tale L.J., 334 (I952), I6 Land C.P., 141 (I95I}, 14 Ohio St.
L.J., 3 (1953)), from whom Emmett Smith derived most of his argu-
ments. Beutel, like Williston, participated constructively in some of the
Code discussions. At a later stage opposition from the Indiana State
Bankers' Association led to the death of a bill to introduce the Code in
the I 95 7 session of the Indiana State Legislature. Handbook, 172 ( 195 7).
However, the Code was enacted in Indiana in 1963. See also, John B.
Waite, 'The Proposed New Uniform Sales Act', 48 Mich. L. Rev., 603
(I950). See further below pp. 53o-45.
67 See below, p. 528.
68 Ex rei. Soia MentschikoffLlewellyn. On origins of Article 9, see Gilmore
Security Interests in Personal Property 290 (I965) cp. above pp. 4I7-8.
6g K.L.P., J, XIII ( 195 1}, d, 5o-2.
70 One incident illustrates his style. At a joint meeting of the ALI and the
NCC in Washington in May I951, a Mr Butler, representing the
American Warehouseman's Association, Merchandise Division in
Boston, gave evidence to the effect that his organisation favoured the
indefinite postponement of the enactment of the Code. Since Mr Butler
had no standing at the meeting, a member of the ALI, Mr Heineman,
51 8 notes to chap te r 11

undertook to move a motion in those terms on Mr Butler's behalf while

making clear that he disagreed with it. Up jumped Karl Llewellyn:
'Solely on Mr Butler's behalf, I second it.' Not surprisingly, perhaps,
the motion was defeated.
Llewellyn's faith in working for consensus was strengthened by his
experience of the Code. He expressed some of his satisfaction in his
evidence before the Pennsylvania Legislature Sub-Committee in June
I952. In discussing Article 6, he said: 'It is really amazing, gentlemen,
when you take this ten-year haul that we have had, to find how many
points of bitter conflict have splendidly worn themselves out as time
has gone on and as frequently wisdom has come up in the form of some
type of solution that satisfied both sides or by the process of dicker when
an outfit insisting on one point was willing to give on that if something
reasonable was given in return' (K.L.P., J, XIV (I952). j. 33). That
Llewellyn was not always polite in responding to criticism is apparent
from the record of the hearings of the NYLRC. See, for example, 2
N.T. Law Rev. Comm., I437-8 (I954).
71 The part played by academic lawyers in the drafting of the Code is
sometimes exaggerated. Llewellyn himself and Bunn were the only two
of the original reporters who were, at the time of their appointment,
established law teachers. Prosser and Mentschikoff were in practice at
the time of appointment and Gilmore, Dunham, and Leary were young
men at the outset of their careers. Except perhaps for Prosser, it is fair to
say that this group made their names as legal scholars at a later stage.
72 U. Ill. Law Forum, 322 (1962).
73 See especially 61 Tale L.J., 334 (1952), 16 Law and Contemp. Prob., 141
(I951).
74 Gilmore, in an article replying to Beutel's general attack on the Code,
felt that he must leave the answer to the allegations of a sell-out to the
bankers 'to someone who can undertake it with a better heart'. 6I
Tale L.J., 364, 374 (1952). See generally, Kripke, U. Ill. Law Forum, 32 I,
322-8 (I962).
75 D. Caplowitz, The Poor Pay More; C011SU111M prtUtiees of low-income families
(1963).
76 Uniform Consumer Credit Code, drafts (1966--g). See Helen Nelson
(ed.), Consumer Viewpoints (196g).
77 Ex rei. Soia Mentschikoff Llewellyn. See also D. Murray, 'The Con-
sumer and the Code: A Cross-sectional View', 23 U. Miami L. Rev., I 1
(I96g).
78 The history of the New York Study is recounted in the Reports of the
NYLRC for I954 and 1956. See also Schnader, 'The Future of the
Uniform Commercial Code' (MS), K.L.P.,J, XVIII (I956). x, c.
79 Adopted by ALI and NCC in I955·
 not e s to c h a p t e r 1 1 519

8o Published in edited form by NYLRC as Legislative Document (1954)

No. 65 (A), Albany, 1955.
81 Op. cit., note 78, at 67.
82 Ibid., 68.
83 Ibid.
84 'Panel Discussion on the Uniform Commercial Code', 12 The Business
Lawyer, 49 at 53-4 (1956). This discussion contains an excellent analysis
of the areas of agreement and disagreement between the N.Y. Com-
mission and the sponsors of the Code. Naturally it was in the interests of
the latter to play down the extent of disagreement. See also R. Braucher,
58 Col. L. Rev., 798 (1958).
85 Ibid., 78. In fact, Article 5 was enacted in New York in a somewhat
attenuated form.
86 Llewellyn was a member of the Editorial Board and the subcommittee
on Article 2; Mentschikoff was on the subcommittees on Articles 5 and
8. Also by virtue of the treaty, the Chief Reporter and Associate Re-
porter could attend all subcommittee meetings, and nearly always
did so.
87 Handbook, 1oo-1 (1957).
88 In fact the 1957 draft of Article 5 represented a return to conceptions
which much more closely accorded with Llewellyn's views than the
1952 draft, which had been changed in an effort to placate some of the
New York banking counsel. At several stages in the history of the code
there were complicated political manoeuvrings about the retention of
Articles 4 and 5·
8g R. Pasley, Panel Discussion, op. cit. (above, note 84), at 57·
go NYLRC Report, 29.
91 See especially ibid., 25.
92 71 Tale L. ]., 813 at 814-5 (1962). On the generally more iconoclastic
approach of the drafting staff compared to their advisers, see H. Kripke,
'The Principles Underlying the Drafting of the Uniform Commercial
Code', U. IU. lAW Forum, 321, at 322-3 (1962). Mentschikoff's opinion
is that Gilmore's statement is more applicable to Articles 4 and 9 than
to others.
93 For a brief account see R. Braucher, 'The Uniform Commercial Code-
A Third Look?', 14 W. Res. L. Rev., 7 (1962), and Schnader, 'The
Permanent Editorial Board for the Uniform Commercial Code: Can it
Accomplish its Object?', 3 Am. Bus. Law. ]o., 137-44 (1965). Subse-
quently a number of studies of suggested amendments have been under-
taken. See especially the first three Reports of the Permanent Editorial Board
(1962, 1964, 1967). Schlesinger, in his report to the New York Law
Revision Commission, had some shrewd observations to make on the
difficulties of revising a code, once enacted, even in a single jurisdiction.
52 0 notes to chap te r 12

He concluded: 'No effort seems too gr~at to keep such arteriosclerosis

out of the law' (op. cit. 99-104).
94 Schnader, id., at 143.
95 Permanent Editorial Board Report No. 3, X (1966). See further:
'UCC Annual Survey of Legal Developments', 26 Bus. Law. 1163
(1971), 27 Bus. Law. 709 (1972).

12 THE JURISPRUDENCE OF THE UNIFORM

COMMERCIAL CODE
1 Corbin, 59 Tale L. ]., 835 (1950).
2 This version was drafted by Llewellyn; the xg62 official text contained
some variations - see 1962 text 1-1 02( 2): cf. Llewellyn to W. D. Lewis:
'Statement on value of Code for commercial and financial interests:
(1) To bring the law abreast of modem need,
(2) To clean out needless and expensive complexity and confusion,
(3) To introduce throughout standards of commercial reasonable-
ness and safety,
(4) To provide a solid and clear basis for counselling and for in-
formal adjustment of disputes.' K.L.P.,J, V, 1, a (1943).
3 'Now what's to go into a uniform commercial code? Plainly you start
with what you've got. If you've got a body of uniform commercial acts,
you've got to pick up the uniform commercial acts that you have and
start from there.' Llewellyn, at panel discussion of Code at Annual
Meeting of the Ohio State Bar Association, 27 May 1950. K.L.P., J,
XII, I, q, p. 3 (1950).
4 Statement to N.Y. Law Revision Commission at p. 12 (below, p. 538).
5 Ex rei. Soia MentschikoffLlewellyn.
6 Memo: 'Re Possible Uniform Commercial Code', addressed to execu-
tive committee on Scope and Program of NCC Section on Uniform
Commercial Acts. K.L.P.,J,Il,I,b [reproduced in appendix E].
7 Ibid.,2.
8 Ibid.
9 Mentschikoff, 27 M.L.R., 167, 171 (1964), where she notes that in some
places, primarily in Article 4, it tended to creep in during the process
of amendment.
10 See, further, memo., op. cit. (n. 6) referring to ss. 63 and 59(3) and (4)
of the RUSA draft (1940).
1I Ibid., Llewellyn's italics.
12 Ibid.
13 For a sceptical view of this claim, see Gilmore, 'On Statutory Obsoles-
cence', 39 U. Colo. L. Rev., 461 (1967).
14 Op. cit., above, ch. II, n.57•
15 On the potential clash between uniformity and other values, see
D. Mellinkoff, 77 Tale L.Jo, 185 (1967).
 not e s to c h a p t e r 1 2 521

16 Revised UnifonnSaks Act, Second Draft, 251-3 (1941).

I 7 This contained a number of rules of construction which could not be
varied by agreement. The 1962 text reads:
The effect of provisions of this Act may be varied by agreement, except as
otherwise provided in this Act and except that the obligations of good faith,
diligence, reasonableness and care prescribed by this Act may not be dis-
claimed by agreement but the parties may by agreement determine the
standards by which the performance of such obligations is to be measured if
such standards are not manifestly unreasonable (8.1-102(3)).
I8 Ibid.
19 See above, p. 462, n.72-7. K.ripke, op. cit. at p. 326, characterizes the
Code as 'a fundamentally conservative piece of amendatory legislation'.
20 NYLRC, op.. cit., vol. I, at 37; cf. generally, Hawkland, 'The Uniform
Commercial "Code" Methodology', I962 U. of Ill. Law Forum, 2giff.
2I NYLRC, op. cit., 12-13; memo: 'Re Possible Uniform Commercial
Code (1940)', below, appendix E.
22 Lectures, K.L.P., C, series M, 12, 1 (I955).
23 Lobingier, Codification 3 Enc. Soc. Sci., 6o6, 6Ig.
24 Op. cit. (note 22 above).
25 Llewellyn: Carter,James Coolidge, 3 Enc. Soc. Sci., 243, 244.
26 K.L.P., C, Series H. Cf. Llewellyn, 'Problems of Codifying Security
Law', I3 Law and Contemp. Problems, 687 {I948).
27 Holmes 'Path of the Law' 10 Harv. L. Rev. 457 ( I897).
28 Op. cit., n.25 at 243·
29 Ibid., at 244.
go Trauaux de La Commission de Refonne du Code Civil 194fl-49, at 98, cited
by Franklin, I6 Law and Contemp. Problems, ggo, at 336 (I95I).
3I S.I-103.
32 Mooney, I I Vill. L. R.,passim, esp. at 257-8 ( 1965-S).
33 Church, Business Associations Under French Law, 29-30 (I 96o) ; Schle-
singer, op. cit. at I 04ff.
34 See above, ch. I o.
35 Schlesinger, I NrLRC, at 96-7.
g6 Rabel, Observations on Revised Uniform Sales Act, Final Draft No. 1
(memo: K.L.P., J, VIII, 2 June I946); Rabel to Goodrich, I I Nov-
ember I 94;, referring to letter to Lewis. Llewellyn also held several
informal meetings with Rabel (ex rei. Soia MentschikoffLlewellyn).
37 Rabel mentions, for example, 'the kinds of sale contracts distinguished
according to the place where the seller has to terminate his activity
(ss. 73 et seq); unilateral appropriation to the contract by the seller
(ss. 7I, 72); the right of the seller to substitute conforming goods •.• ;
the separation of risk of loss from title; the development of the rules for
delivery in instalment contracts (s. 102); the merger of the remedies for
breach of warranty with those for breach of contract and the improve-
52 2 notes to chap te r 12

ment of the rules for anticipatory breach (s. 100)', at 1-2, Memo by
Rabel, dated 25]une 1946.
38 Ibid., at 3·
39 Ibid.
40 Seeabove(chapter9).
41 Tlu Report of the Commission on Obscenity and Pornography (1970) is an
example of a recent trend of government-sponsored reports which have
moved closer to the 'scientific model' in the United States. The Com-
mission is estimated to have cost in the region of two and a half million
dollars, yet the main empirical studies were admitted to be inconclusive
and, at the end of 1970, it appeared unlikely that the Cominission's
recommendations would be implemented. The financing of the Code
Project was on a much more modest scale.
42 L. Friedman, 'Contract Law and Contract Research: Past, Present and
Future', 20 Jo. Leg. Ed., 452, 455-6 (I968). See also F. Beutel, I6
L. and C.P., I4I, I42-5 (1951). Gilmore replied to Beutel, in 6I
Tale L.J., 364 at 366 (I952), but issue was not squarely joined in this
debate.
43 'The Theory of Legal "Science",' 20 N. Carolina L. Rev., I, 13 (I94I).
44 Ibid., at 22.
45 Ibid., at I 3-4.
46 A questionnaire (relating to letters of credit) was sent out by members
of the New York Law Revision Cominission during their enquiry. In
connection with Article 8 a request was sent to all cominissioners to
check what kinds of pieces of paper were being used in the local
markets as investment securities. It is interesting to note that in their
public relations the sponsors laid great stress on the theme that
'EXPERIENCE, NOT THEORY' should be the basis for evaluation of
the Code. In a pamphlet which emphasised the theme, 'experience' is
evidenced by resolutions and letters solicited by Schnader and Malcolm
from leading law firms and commercial organizations in Pennsylvania
and Massachusetts. This pamphlet appears to have been the nearest
approach to an attempt by the sponsors to collect empirical data about
the effects of the Code after enactment. It may represent shrewd public
relations vis a vis state legislatures, but it is a far cry from the kind of
evidence postulated by the scientific model. The full title of the
pamphlet is Tlu Uniform Commercial Code in Pennsylvania rgj6-rg64 and
in Massachusetts rgs8-rg64- Experience- Not Theory- Some Interesting
Letters and Resolutions ••• A Convincing Artiele by a Prominent Banker ( 1964).
47 E.g., Lewis to Pepper, 25 September I945• K.L.P.J., VII, I, C.
48 Ex rei. Soia MentschikoffLlewellyn.
49 Ibid.
50 It has been suggested to me, by Mr Kirk Roose, that part of the
puzzlement about the empirical base of the Code may be attributable
 not e s to c h a p t e r 1 2 523

to differences between the way a commercial and, for instance, a penal

law are designed to influence behavior. If I understand the suggestion
correctly, it implies that whereas typically a penal law, for example, is
primarily directed towards deterring or preventing certain classes of
act on the part of the public at large, many rules of commercial law are
designed to facilitate, to simplify or to give legal recognition to the
practices of specialized groups, such as lawyers and businessmen. Thus
to test the claim that the Code simplifies the law, it would be necessary,
inter alia, to investigate how it has affected the behavior of teachers
and students of the subject and whether it has appreciably reduced the
time spent in research by lawyers in practice. This could be an interest-
ing, but elusive, line of enquiry. Similarly it would not be easy to
discover whose behaviour had been affected in what ways by making
'uniform the law among the various jurisdictions'. And, in so far as the
Code recognized existing business practices or facilitated the develop-
ment of new ones, it would be extraordinarily difficult to establish
empirically a connection between the Code and changes in the be-
havior of businessmen. Of course there are specific sections of the
Code which are designed to have a direct influence on the behavior
not only of businessmen, but also of ordinary members of the public.
Nevertheless the suggestion is an interesting one and, if elaborated,
might provide the basis for elucidating such elusive concepts as 'merely
technical reforms' and 'lawyers' law'.
Professor Robert Summers has commented:
I think the biggest and best reason for lack of empirical research is this: most
of the Code is 'suppletive' law - it applies only when the parties have not
agreed as to the matter in hand. It says what the law is when the parties
don't say. It is therefore rather generalized stuff which courts must particu-
larize in specific cases. How can we do good empirical research on such
generalized stuff, or even on what constitutes rational particularization?
Also, much of the Code deals with remedies (absent contractual specifica-
tion again). It is relatively easy, without doing research, to decide in general
terms what remedies are rational and just for what Llewellyn would have
called 'type situations' (communication to author).
5 I Professor Grant Gilmore, interview, April I 968.
52 Professor Gerhard Casper, interview, April 1968.
53 Doubt has been expressed about Llewellyn's assumptions (in The
Common Law Tradition, pp. 37o-7I) concerning the behaviour and
expectations of businessmen when they read the 'fine print' in standard
form contracts. (A. Leff I IS u. Pa. L. Rev. 4-Ss. so6-8).
54 K.L.P.,J, VI, I,e,ats(I944)·
55 The earlier drafts (esp. I947, I950, I952) contained a number of other
rules of construction drafted by Llewellyn which were subsequently
dropped.
52 4 notes to chap te r 12

56 (I584) 3 Co. Rep., 7, A.

57 At I2.
s8 At I3.
59 S. I-Io6 (I), The comment states:
Sub-Section (I) is intended to effect three things:
I. First, to negate the unduly narrow or technical interpretation of some
remedial provisions of prior legislation by providing that the remedies in this
Act are to be liberally administered to the end stated in the section. Second,
to make it clear that compensatory damages are limited to compensation.
They do not include consequential or special damages, or penal damages;
and the Act elsewhere makes it clear that damages must be minimized.
cr. Sections I-ll03, 2-7o6(I), and 2-712(2). The third purpose ofsub-section
( 1) is to reject any doctrine that damages must be calculable with mathe--
matical accuracy. Compensatory damages are often at best approximate:
they have to be proved with whatever definiteness and accuracy the facts
permit, but no more.
6o S.4-I07 (I).
6I I NTLRC Study of the Uniform Commercial Code, at 64, notes 74, 78
(I955)·
62 Some early statements of reason in the text of the draft Sales Act were
eliminated because of opposition from Learned Hand and Willard
Luther. K.L.P.j., VI, I e, 6 (I944)·
63 The Common Law Tradition, I83.
64 K.L.P.J., VI, 1, e, 6 (I944).
65 E.g., 2-204 (I), 2-237 (I), 2-6o3, 2-6o5, etc.
66 S.2-I04 (I). Comment, 42-3.
67 S.2-20I(2), 2-205, 2-207, 2-20g.
68 At43.
6g Mentschikoff, 27 M.L.R., I67, I68 (I964).
70 The Common Law Tradition, I83.
?I S.2-I04·
72 Skilton, 'Some Comments on the Comments to the Uniform Com-
mercial Code', Wis. L. &v., 597, 599 (I966). This article was particu-
larly helpful in the writing of this section.
73 See English and Scottish Law Commissions: Working Paper on Inter-
pretation of Statutes (Ig67), app. D.
74 For refs see Merrill, 49 A.B.A.]., 545, 546-7 (I963).
75 See esp. U.R.S.A., I94I Draft, at 49, I944 Draft, at I and 72.
76 Braucher, 58 Col. L. &v., 7g8, 8og (I958), Handbook, I49, I64 (I944)·
77 Reproduced in Llewellyn, Commercial Law Materials, part 3· Mimeo.,
Spring I948, K.L.P., K, II, I4·
78 K.L.P.,J, V, 2, d, I (I943)·
79 Braucher, op. cit., Bog. The purpose of the provision was to avoid con-
fusion arising from the many changes made in the wording of different
 not e s to c h a p t e r 1 2 525

drafts, when there was no intent to change substance (ex rei. Soia
MentschikoffLlewellyn).
8o S.J-102(3)(f), (1952 draft).
81 Judge Learned Hand is reported to have remarked that the dropping
of these provisions involved no real sacrifice since the judges would use
the comments anyway. (ex rei. Soia MentschikoffLlewellyn.)
82 K.L.P.,J, VII, 1, c. Lewis to Pepper, 25 September 1945.
83 See generally Skilton, op. cit., 6o6 ff.
84 Honnold, Sales and Sales Financing, 18 (2nd ed., 1962).
85 Skilton, op. cit., 5g8-6o5; Merrill, op. cit., 546-7.
86 Skilton, op. cit., 6o8.
87 Ibid., 631.
88 For a more detailed discussion of the subject, see Donald B. King, TM
New Conceptualism of the Uniform Commercial Code (1g6g).
8g Llewellyn memo, Re. Possible Uniform Commercial Code (app. E).
See also Mentschikoff, 27 M.L.R., 167 (1964), and Commercial Trans-
actions, Cases and Materials, introduction (1970).
go Schlesinger, op. cit.
91 Mentschikoff,op.cit.,at 175n.
92 Schlesinger suggests (at 121-2) that it would have been difficult to
achieve uniformity if agency had been included.
93 At39.
94 Malcolm, 13 TM Business Lawyer, 490, 499 (I 958).
95 The effect of breach on risk ofloss is also spelled out in detail ins. 2-510.
g6 On Hohfeld's contribution to 'narrow issue' thinking, see p. 35 above.
The draftsmen also kept Hohfeld's analysis very much in mind, but did
not use his noun-form concepts (claim, no-right, etc), preferring for the
most part the verb-form (may, must, can, etc.).
97 Malcolm, 'The U.C.C. as Enacted in Massachusetts,' 13 Business
Lawyer, 490, at 505 (1958). Cf. Llewellyn, 'What is needed is clarity,
simplicity, convenience, fairness, completeness, accessibility and
uniformity', 13 Law and C.P., 687 (1948).
g8 Mentschikoff, op. cit., 183.
99 Comment 1 on s.9-109.
100 S.!r-307.
101 S.9-312.
102 S.!r-401.
103 Another example of simplification is to be found in Article 5· This
brings all letters of credit into a single category, governed by one set of
rules.
104 Max Gluckman TM Judicial Process among the Barotse elf Northern
Rlwdesia, 16o (2nd ed. 1967).
105 E.g., Mentschikoff, 27 M.L.R., at 171.
106 E.g., NTLRC, Report at 15-20 (1956).
52 6 notes to chap te r 12

107 An extended controversy has developed over the concept of 'un-

conscionability' in s.2-302 of The Uniform Commercial Code. The
main difference has been between critics of the drafting of the section
(who maintain, like Professor Leff, that the draftsmen erred in failing
to give precise meaning to unconscionability), and those who believe
that the code draftsmen were wise not to define 'unconscionability'.
R. Speidel, R. Summers and J. White, Commercial Transactions, 466
( I96g). See especially A. Leff, 'Unconscionability and the Code- The
Emperor's New Clause', II5 U. Pa. L. Rev., 485 (1967), M.P. Elling-
haus, 'In Defence of "Unconscionability",' 78 rate L.J., 757 (1969),
and John E. Murray 'Unconscionability: Unconscionability', 31
U. Pittsburgh L. Rev., I (196g); see further the symposium in 34 Albany
L. Rev. 231 {I970). In so far as the main issue centres on a differences
of opinion about the desirability of leaving a wide discretion to the
courts in administering general standards, Llewellyn's position on
the general point was quite clear: he believed that it was unwise to
attempt to give precise legislative guidance in this area. However,
as Leff points out, Llewellyn may himself have been uneasy about
S.2-302.
108 S.I-201.
109 Ex rei. Soia Mentschikoff Llewellyn. For a critique of the definitions
employed in the Code, see D. Mellinkoff, 'The Language of the
Uniform Commercial Code', 77 rate L. J., 185 (1967).
110 See especially Bibliography, nos. I5, 2I, 32, 53, 57, 59, 62, 63, 64, 65,
67, 76, 79, 88, 94, 102 and numerous reviews.
11 I Above (note uo), nos. 57, 59, 64, 65.
112 47 rate L. J., I243 (I938).
I13 15 NrUL Rev. 159 (1938); see also Cases and Materials on the Law of
Sales, ch. 6, especially 561-6 (1931).
114 44 Col. L. Rev., 299 n. (1944).
I I5 Jurisprudence, 323.
116 See especially 'The Rule of Law in our Case Law of Contract', 47
rate L. J., 1243 (1938).
117 48 rate L. J., 779, 785 (1939).
118 Mooney, op. cit. (n.32) at 2 I5.
119 48 rateL.J.,at32·
120 Op. cit., at 223.
I2I Ibid.,at258.
122 Ibid.
123 Mooney acknowledges this, but nevertheless seeiDS in some passages to
exaggerate the importance of Llewellyn's contribution.
124 Mentschikoff, Commercial Transactions, Cases, and Materials, 4 (1970).
125 Jurisprudence, 217.
126 Mentschikoff, op. cit., 1·
 not e s to c h a p t e r 1 3 527

13 MISCELLANEOUS WRITINGS

1 The main sources for this account are (i) K.L.P., section G, which
contains correspondence, memoranda, manuscripts, etc. which exten·
sively document llewellyn's activities; (ii) Joughin and Morgan, The
Legacy of Sacco and Vtlll<:etti (I948); Frankfurter, The Case of Sacco and
Vanzetti ( Ig6I ed.); Felix, Protest: Sacco·Vanzetti and the Intellectuals (I965).
2 See Felix, op. cit.,passim.
3 Jurisprudence, 43I ff. (a section of the unfinished book discussed in the
text, entitled 'Who are these Accused?'. The full passage is also to be
found in Joughin and Morgan, op. cit., and in Michael and Wechsler
Criminal Law and its Administration (1940)).
4 Felix, op. cit., n. I.
5 Ibid., 247·
6 Joughin and Morgan, 385.
7 I.e.,Joughin and Morgan, and Felix, op. cit.
8 MS. part I, 2o-6. Thus llewellyn's involvement began almost five years
after the original conviction of the two accused.
9 SeeJoughin and Morgan, 255, Felix, 175·
IO Petition to Governor Fuller, dated 4 May I927, K.L.P., G, II.
I I Delivered on Station WPCH, 20 August I927· The full text is printed in
Twining, The Karl Llewellyn Papers, at 105-IO.
I2 Ibid., I IO.
I 3 Joughin and Morgan, 314.
I4 K.L.P., G, II (I938).
15 Of a total of approximately three hundred pages of typescript rather
more than a third are by llewellyn.
16 MS., citation mislaid.
I7 MS., part I, 54· SeeA.B.A.].,683--94 (1927).
I8 Especially MS., part I, 68-77.
I9 Letter to Dean Justin Miller of Duke University Law School, 6 August
I93I. Cf. MS, part I, 152 ff.
20 llewellyn formulated the question as follows: 'Is the accepted machinery
of jury trial, party·presentation, and the technicality of our rules of
evidence and criminal procedure an adequate method of determining
disputed facts?' MS., part I, 77· See also ibid., 152; on allegations about
llewellyn's indifference to such questions see Frank Courts on Trial
(I 963 ed.) at 73, discussed above p. I 88ff.
2 I Jurisprudence, 82-3.
22 MS., 68-77, I 53· See also Jurisprudence, 434, 438.
23 MS., part I, I 5-6.
24 MS., part II, 7, I (headed 'Stop!').
25 Ibid.
26 Felix, op. cit., I66.
52 8 notes to chap te r 13

rl7 31 Col. L. Rev., 1215, at 1217 (1931).

28 F. Klein, Judicial Administration and tlu Legal Profession (1963). Llewellyn's
interest was stimulated by Morris Gisnet's A Lawyer Tells tlu Truth (1931),
which he reviewed in 31 Col. L. Rev., 1215. It is interesting to note that
Carr-Saunders and Wilson's path-breaking work on Tlu Professions was
first published in England in 1933· The first report of the Committee on
Professional Economics of the N.Y. County Lawyers' Association (May
1932) might be said to mark the start of systematic bar surveys in the
United States.
rl9 See Twining Tlu Karl llewellyn Papers, Bibliography, items no. 26, 36,
40, 41, 44, 46, 51, 6o, 6r, 73, 82, 85, 8g, 92, 94, 150, and 155.
30 See 8 Am. L. Sch. Rev., 185 (1934), 751 (1936) and I 114 (1938) for reports
of the committee.
31 See generally A. Blaustein and C. Porter, Tlu American Lawyer (1954).
32 See generally L. K. Garrison (ed.), Tlu &onomics oftlu Legal Profession;
ABA, Special Committee on tlu &onomic conditions of tlu Bar (1938). This
brings together some of the most important findings of the bar surveys
conducted in the 19308. On Llewellyn's contribution, see ibid., at 71
and 108.
33 See K.L.P., H, II,passim.
34 See 'Bringing Legal Aid to the Little Man', 82 Pittsburgh L. Jo., 10
(1934); see also 128 American Magazine, 41 (1939), an article on Weiss,
which mentions Llewellyn's part in setting up the clinic.
35 K.L.P., H, III, I.
36 These activities are extensively documented in K.L.P., H. See also works
referred to in n. 33 above.
37 R. H. Smith to Llewellyn, 3 February 1947.
38 (i) 167 Annals, 177 (1933); (ii) 5 Law and Contemp. Problems, 104 (1938),
reprinted Jurisprudence, 243·
39 Q.Johnstone and D. Hopson, Lawyers and Tluir Work ( 1967).
40 'The Bar specializes ••. ,'at 343·
41 J. Carlin, Lawyers and Tluir Work (1962), Lawyers' Ethics (1966). The
phrase quoted is from G. Hazard, preface to Lawyer's Ethics.
4rl See generally Blaustein and Porter, Tlu American Lawyer (1954).
43 'The Bar Specializes ••• ', at 344·
44 Bentham, Tlu Handbook of Political Fallacies, 34 (ed. Larrabee, 1962).
45 See especially 'The Bar Specializes .•. '.
46 'Bringing Legal Aid to the Little Man', op. cit. at 14.
4 7 See Abel-Smith and Stevens, Lawyers and tlu Courts, 191-2 ( 1967).
4-B See G. Hazard, 'Reflections on Four Studies of the Legal Profession', in
Law and Society (supplement to Social Problems, summer 1965).
49 See above, p. 199, below, Appendix C.
50 E.g., 'What is Wrong with so-called Legal Education', 35 Col. L. Rev.,
651 (1935).
 not e s to c h a p t e r 1 3 529

51 Weber, Law in Economy and Society, ch. VII (ed. Rheinstein and Shils,
1954)·
5!Z See above, p. !Z5.
53 A good idea of the bulk, if not of the quality, can be obtained from the
series of bibliographies on legal education produced by the Library of
N.Y.U. Law School; see Sullivan, A Bibliography of Materials on Legal
Education (1961) and supplements.
54 Other members were Charles Bunn, Judson F. Falknor, Lester W.
Feezor, Frederick]. Moreau.
55 45 Col. L. Rev., 345--91 (1945).
56 See also Jurisprudence, 376--7.
57 See Sullivan's Bibliography, op. cit. A recent symposium is E. Kitch (ed.),
Clinical Education and the Future of the Law School (1970).
58 On Advocacy, see above, pp. !Z6o-4.
59 K.L.P.,Q.
6o Irvin C. Rutter, 'A Jurisprudence of Lawyen' Operations', 13 J. Leg.
Ed., 301 (1961).
61 Charles D. Kelso, A Programmed Introduction to the Study of Law (1g65);
for a critique see O'Donovan, Twining and Mitchell, 'Legal Eagles or
Battery Hens?', 10 J.S.P. T.L. (N.S.), 6 ( 1968).
62 The main sources for this section are as follows: (i) The Karl Llewellyn
Papen, section I (II) and (V). (These include field notes, correspond-
ence, memoranda and manuscript fragments, draft codes and some pre-
liminary drafts ofsections of a book on Pueblo Indian Law-Government.)
(ii) Interviews with Professon E. A. Hoebel and S. Mentschikoff.
(iii) E. A. Hoebel: (a) 'The Authority SysteJns of the Pueblos of the South-
western United States', Akten des 34· Intemationalen Amerikanisten-
Kongresses (Wien, rg6o); (b) 'Keresan Pueblo Law', in L. Nader (ed.),
Law in Culture and Society, 92 (1g6g). (c) Correspondence with author.
(iv) Ruth Benedict, Patterns ofCulture (1934); W. Smith andJ. M.Roberts,
Zuni Law: A Field of Values; Papen of the Peabody Museum, Harvard
Univenity, vol. 43, no. 1 (1954); I. Goldman, 'TheZuniofNew Mexico',
in M. Mead (ed.), Cooperation and Competition Among Primitive Peoples,
ch. 10, (1937); D. McNickle, They Came Here First (1949); Edward F.
Dozier, 'Rio Grande Pueblos', in Edward H. Spicer (ed.), Perspectives in
American Indian Culture Change, 94-180 (1961). The last cited is a most
useful survey.
63 On the resistance of Pueblo culture to outside influences, see Dozier,
op. cit.,passim.
64 Benedict, op. cit., esp. at 100, criticised by Llewellyn and Hoebel, draft
MS., ch. I. at pp. 2-7, K.L.P., I, II, 20. See also Smith and Roberts,
op. cit., at n.62, Goldman (1937), op. cit. id.
65 Hoebel, MS., (K.L.P., I, II, 1).
66 Brophy to Mentschikoff, !Z7 February 1962. According to Hoebel the
53 0 notes to chap te r 13

Dean of the University of Colorado Law School had recommended The

Cheyenne W'!i' to Brophy and told him of Llewellyn's visit.
67 Ibid.
68 Ibid.
6g Llewellyn composed the following mnemonic on the limits of federal
jurisdiction:

Dangerous weapon, intent to kill,

~illing in either shape,
robbery, burglary, larceny, will
go to the Feds., like rape
and burning down a barn or house
or screwing family, like a louse.
Embezzlement, fraud and fornication
are safe, within the reservation.

For a resume of the legal position, see Hoebel, op. cit. (iii) (b), at 93
(196g).
70 Hoebel points out (op. cit. at (iii)( a)) that 'the repressive nature of Pueblo
government induces some Pueblo Indians to seek relief in appeal for
intervention by the Agency administration or by the state or federal
courts. The Civil Rights Act of 1968 led to a crisis over the problem of
jurisdiction.'
71 By this time (1941) Brophy had become Commissioner oflndian Affairs
(i.e. Head of the Bureau of Indian Affairs). In this capacity he gave
directions that official assistance should be given to Llewellyn and
Hoebel. In any case several officials of the B.I.A. were already enthu-
siastic supporters of the project.
72 Notably Emma Corstvet (Llewellyn's second wife) and Thomas Gifford
(then a law student at Columbia). The archives of the United Pueblo
Agency were made available and proved to be a rich source of docu-
mentary material.
73 At the time anthropological research in the Keresan Pueblos was for-
bidden by the Indians; an exception was made in the case of Llewellyn
and Hoebel only because they were giving practical assistance and in the
case of Zia because they promised to publish nothing that would injure
the Pueblo. Hoebel, op. cit. (iii) (b), (196g).
74 Some of the material has been used by Hoebel in the works referred to
in no. 62.
75 See appendix F.
76 Llewellyn. Memo., 'The Individual and the Tribe,' K.L.P., I, II, 17
(also K.L.P., I, II, 15, 16 and 18).
77 Thus when some Protestant converts threatened the harmony of the
Pueblos ofjemez and Zia the solution was to expel them; Dozier, op. cit.,
I77-
 not e s to c h a p t e r 1 4 531

78 See Twining, The Place of Customary Law in the National Legal Systems of
East Africa, 32-53 ( I964).
79 McNickle, op. cit., 86. The preamble is reproduced in appendix F.
8o Memo. to Soc. Sci. Res. Council, entitled 'Project on Soviet Law',
K.L.P., R, III, I4 ( I947)·
81 See above, I 67.
82 Llewellyn, Memo., 'A Note on "Pueblo Soviet Parallels"'. This Memo.
accompanied the application to the Soc. Sci. Res. Council (op. cit.).
83 See generally F. Hsu, The Study of Literate Civiliz:ations (I 96g).
84 Hoebel, in summing up on the Pueblo system of law-government, con-
cludes: 'Its basic ideology is rather different from that of the modem
totalitarian state, but its collective emphasis produces striking parallels
in the legal apparatus' (42).
85 E.g., Rheinstein, review of Berman, 'Justice in Russia', 64 Harvard Law
Rev., I387, 1388 (1951).
86 Llewellyn MS., 'The Parental Pole of Law Government', K.L.P., B,
IV, 15 (I96o-2)?
87 K.L.P., B, IV, 6.
88 See above, n.So.
8g K.L.P., B, IV, 15, 5·
go Ibid., 3·
9I See Law in Our Society 45-50 (1950) and supplementary materials
K.L.P., L,I, g and h.
92 See especially H. Berman, Justice in Russia, passim, especially 42I-3
(2nd ed. I963). Berman took Llewellyn's course on 'Law in Society' at
Harvard in 1948--g, but claims that it was Eugen Rosenstock-Heussy
who provided the main stimulus for his analysis of the Soviet system
(Llewellyn was also an admirer of Rostenstock-Heussy, see K.L.P., R,
XVIII). Professor Soia Mentschikoff developed the idea of the parental
model in a seminar on 'dispute settlement' given in Chicago in Ig64 and
subsequent years.

15 THE SIGNIFICANCE OF REALISM

1 On Frank's qualities as a judge, see M. Schick, Learned Hand's Court
(I970) and J. Mitchell Rosenberg, Jerome Frank: Jurist and Philosopher
(1970).
2 The Concept of Law, 250 (I961).
3 Law in Our Society, 8~7.
4 See especially W. B. Kennedy, 'Functional Nonsense and the Trans-
cendental Approach', 5 Fordham L. Rev., 272 (1936); 'More Functional
Nonsense', 6 Fordham L. Rev., 75 {I937); 'Realism, What Next?', 7 Ford-
ham L. Rev., 203 {I 938); and L. Fuller, The Law in Quest of Itself ( 1940).
5 E.g., J. Dickinson, 'Legal Rules: Their Function in the Process of
Decision', 79 U. Pa. L. Rev., 833 (193I); 'Legal Rules: their Application
53 2 notes to chap te r 14

and Elaboration', 79 U. Pa. L. Rev., I052 (I93I); K. Olivecrona, Law

as Fact, 2I3-5 (I962); H. L.A. Hart, 'Definition and Theory in juris-
prudence', 70L.Q.R., 37 (I954).
6 J. Dickinson, op. cit. (n. 5); see further his major work, Administrative
Justice and the Supremacy of Law in the United States (I927). H. Wechsler,
'Toward Neutral Principles of Constitutional Law', 73 Harv. L. Rev., I
(I959); R. Dworkin, 'Is Law a System of Rules?', in R. Summers (ed.),
Essays in Legal Philosophy (I968).
7 R. Stevens, 'The Role of a Final Appeal Court in a Democracy: The
House of Lords Today', 28 M.L.R., 509 (I968). L. Jaffe, English and
American Judges as Lawmakers ( I96g).
8 Especially Jurisprudence, 57 (I93I).
9 In I954 he reasserted this view, while placing less emphasis on the
systematic nature of their efforts. In a letter to G. B. J. Hughes, IO
August I954, he said:
As I indicated back in 1931, the really important contributions of the Realist
movement consist of the monograph jobs that get down under a sound, horse
sense technology ... In the main, I find the theoretical writing on the subject
to have been rather useless since the original points were once made.
As examples of 'recent' material he cited Kessler and Sharp, Contracts:
Cases and Materials ( I953); Crosskey, Politics and the Constitution ( 1953)
('exaggerated but very effective'); the Chicago Arbitration Project;
'and above all .•. the really good articles and notes which appear in
the major law reviews, gathering together significant factual inquiry as
a basis for hard-eyed critique of existing doctrine and its effects and as
a basis for suggesting more useful ways and means for handling the
problems.
This relatively modest appraisal of the theoretical significance of
'realism' is acceptable if the ideas under consideration are those that
were common to members of the movement. It is quite a separate issue
whether some of the theoretical ideas of individual realists were original
or significant: e.g. Llewellyn's 'law-jobs theory', Cook on the scientific
analogy, Frank's 'fact-skepticism' (see Cahn, Confronting Injustice, 283),
or Moore's methodological ideas on empirical research. In fact, Llewellyn
was in the end not particularly impressed by most of the theoretical
ideas of Frank, Cook and Moore.
Io E.g., 52 Tale L. J., 203 (I943), 56 Tale L. J., I345 (I947); McDougal,
Law, Scimce and Policy (forthcoming).
II An interesting recent example is F. Deng, Tradition and Modernization
(I971).
12 See, however, symposium in 54 Virginia£. Rev. (Ig68), especially articles
by Stewart Macaulay (6I7-36) and john N. Moore (662-88).
I3 Holmes 'The Path of the Law', 10 Harv. L. Rev., 457,477 (I8g6).
Appendices
Appendix A
1
The War Adventure

Llewellyn's war adventure has become a legend among American

law teachers. Although the main facts are not in dispute, several
different accounts have survived which diverge on matters of detail.
The version which is perhaps nearest to the historical truth and to
the spirit of the legend can be made to read like the outline for a
psychological novel: a young, articulate, somewhat romantic
American student finds himself in Paris at the outbreak of the first
world war. He has been at school in Germany, has German friends,
a love of German culture, some sympathy with the German cause.
He witnesses a surge of anti-German feeling in Paris; he is irritated
by predictions in the English press that Germany will be defeated
within three months; he is avid for experience; although he is
troubled by the grimmer side of war, his predominating feelings are
excitement and a sense of adventure; he is aware that war service
will give him status back home. He decides to enlist on the German
side. He has difficulty in getting out of France. Ironically, to get
to Germany he has to cross to England and double back through
Holland. He crosses the German border by train in the company of
refugees. At each station he attempts to enlist, but is refused, until
he reaches Osnabrock where he joins the 78th Prussian Infantry.
He refuses to take the oath of allegiance to the Kaiser, as this would
involve forfeiting his American citizenship, and so there is some
doubt as to his eligibility for membership of the Kaiser's army.
While a ruling on this is awaited, he undergoes basic training, the
only member of the regiment in civilian clothes. Later at the front
he acquires most of the uniform of a sergeant who has been shot,
but throughout his career in the German army he has to be content
with a pair of 'baggy zouave trousers' which he had removed from
a dead French peasant.
Meanwhile in the United States worried parents are in touch
53 6 appendi ce s

with the authorities and, eventually the American ambassador,

Gerard, procures Llewellyn's discharge against his will.2 On hear-
ing this Llewellyn is incensed and writes to Gerard, saying that he
is over twenty-one and that his father has no business to interfere.
Gerard withdraws his request, but it is too late, for Llewellyn has
already been discharged.
Soon after this the 78th Prussian Infantry is posted to the front.
Llewellyn goes to the station to see his comrades off. As their train
draws out of the station Llewellyn jumps aboard and is concealed
by his friends; on arrival in France his presence is discovered. He is
formally castigated by a captain, who says he will take the matter
up with his colonel. Later on, during a rest pause on the march, an
officer comes back down the line and is overheard saying to a
sergeant: 'The captain says that the colonel says that if the fool
American keeps quiet, no one will notice he is here.' Thereafter
Llewellyn is generally known as 'the fool American'. The regiment
stays near Reims for several weeks in 'comparative inaction' (which
includes firing at Reims Cathedral). He has his first experience of
being under fire; his reaction is 'an emptiness at the stomach and
uncertainty at the knees'. 8 He soothes a nervous German com-
panion by digging potatoes with a bayonet.
After a few weeks in Reims the regiment is summoned west. A
day is spent in Turcoing 'to get rid of their pay'; then, after a
rousing address by their general, on 17 November 1914, the regi-
ment takes part in a series of attacks on the English lines near
Ypres. Of the several surviving versions of the incident which won
him the Iron Cross, the following, written on a postcard to a friend
at Yale five days after the event, is the nearest in time:

Our regmt was transported in a rush from Reims to Tourcoing, to take part
in the attacks on the 17th; aimed at cutting the whole English army off from
the French and surrounding them. We only succeeded, however, in driving
them out of their trenches (sounds like Jesse James, this post-card!) and in
some places in occupying their second line as well. But little Karl was stung:
just when the fun began and I was double-quicking it from our trenches to a
house some 50 yds. ahead, they opened fire from the flank; it sounded just
like heavy hail shooting by. And then somebody hit me in the small of the
back with a hammer, & I fell half stunned. First thot: spine; but my legs
could wiggle, so I was comforted & crawled on. Had to unsling my haver-
sack. They scratcht my chin & ript up my clothes before I got to the house
but couldn't hit me again. The shot hit neither spine nor kidneys- almost
 appendices 537

impossible luck- I'm nearly well and quite happy - except that I want to
get back into it.'

According to one report, nicely ironical but of dubious reliability,

the bullet that wounded him was made in Connecticut. There
follows ten weeks in hospital in Niirtingen, near Stuttgart. During
this period Llewellyn hears that his petition to be allowed to remain
in the army without swearing allegiance to the Kaiser has been
turned down; however, the disappointment is lessened by the news
of the award of the Iron Cross (2nd class) and by his promotion to
sergeant before discharge. 5 He returns to the United States in
March and resumes his studies at Yale. There he is given his share
of publicity. He addresses a packed hall of undergraduates about
his experiences; according to the Yale Daily News his report is
vivid and amusing, but 'did not throw any light on the serious
aspects of the conflict'.6 For a time he is invited by a number of
pro-German groups to speak on behalf of the German cause, but
his attitude to the issue strikes some of his friends as lukewarm and
ambivalent. As anti-German feeling gathers force in the United
States, Llewellyn understandably is less willing to talk about his
experiences and when the United States joins the war he is quick to
volunteer for the American army. However, to his great annoyance
he is classified as 'morally unfit for military service', presumably
because of his German escapade. He campaigns vigorously to have
the decision reversed (according to one account the President of
Yale made a special journey to Washington on Llewellyn's behalf},
but he only succeeds in having his classification changed. To the
unique honour of being the only American citizen to have won the
Iron Cross is added the more bizarre distinction of being the first
American to have been accorded the draft status of 4X. 7
Such is the bare outline of the story that can be pieced together
from the available sources, which are of varying reliability. The
historical accuracy of the main facts is not in serious doubt, but
different accounts conflict on some of the details. Llewellyn himself
gave currency to a number of different versions as he cast himself
in varying roles: the modest hero, the would-be artist trying to
record his emotions during the event, the amusing, sometimes
satirical raconteur, and the student of logistics and morale. Before
anti-German feeling began to grow in the United States, he seems
to have enjoyed his new-found prominence and he was not in the
53 8 appendi ce s

least reticent about his adventure. On his return, in addition to

giving interviews to the press and the addresses that have been
mentioned, he drew on his war experiences as raw material for a
number of literary essays, some of which seem to have been done as
academic assignments. Later, when adulation turned to suspicion,
he rarely talked about the episode and when he did he tended to
make light of it. These undergraduate essays are particularly
revealing documents. They represent a series of attempts to record
and to rationalize his feelings about one of the most important
experiences of his life, before American involvement in the war
made him defensive and reticent about the episode. Of those which
survive, two are of particular interest in the present context.
The first, entitled 'Paris>,& is a highly coloured, probably half-
fictional account of the first few hours after the announcement that
war had been declared. The theme is the contrast between
Llewellyn's exhilaration and excitement at the news and the re-
actions of three women at his lodgings: the wife of the concierge
whose son wants to join up; Jeanne, an unidentified girl, who is
worried about her brothers and cousins and boy friends, who will
all go away and get themselves killed; and Madame, quiet, silver-
haired, 'a charming talker', who works herself up into a frenzy of
hatred against the Germans, as below in the street a crowd attacks
a German shop. The story ends with Llewellyn mounting the stairs
to his room to a chorus of weeping women ... 'somehow the jolly
idea about war had all faded out'.
The central argument of the second piece, 'What (a) private
thinks about the War',9 is that the ordinary German soldier is just
an ordinary human being, unrelated to the image of the 'brutal,
soulless blackguard ravaging and ravishing wantonly', or to the
shining hero of German opinion. Much of this essay is taken up with
an evocation of the emotional atmosphere surrounding Llewellyn's
adventures. Although he is ostensibly writing about the feelings of a
German private soldier, Llewellyn identifies so closely with him that
it can safely be taken as an account of his own feelings. The
atmosphere is vividly depicted: the initial excitement of joining up;
the heroes' welcome given to the recruits at each city they came
to; the expression on the faces of the crowd in Cologne when
Llewellyn's comrades started to sing the one song that German
soldiers seem to know about Cologne and which had been sung by
troops in every train that had passed through the city in previous
 appendices 539

months; the eagerness to get into the fight; the sensation of being
one of fifteen thousand men singing 'A Mighty Fortress is Our God'
as they wait for their general to address them before they go into
battle for the first time; the mingled sense of anticipation and of
anticlimax before action, the quick hardening to the sight of death
and destruction; and then the first experience of being under fire:
The first shells have a remarkable effect. You have been marching, march-
ing under tension, expecting you hardly know what - and suddenly the
whine of a shrapnel breaks in on you - the crash of its explosion on the still
air- and another, and another, and another. Whether you realize what
they are or not, - whether they are near you or not - you duck, dodge -
want to run anywhere, anyhow- and run fast. That this is WAR becomes a
fact all vivid and threatening, the tension has snapped - there is the un-
expectedness, the noise, the newness- the uncertainty of what will follow all
in that one instant. You're in the trenches, the enemy is flying.- Then with-
out warning comes the revulsion of feeling. You were very 'humanitarian'
on the attack. You would have loved to carry your wounded neighbor back
out of range, tho' it broke your back- purely out of pity for him, of course!
Now there they are, running, running wildly- the men that were shooting
at you! It isn't nice- it isn't civilized, but there is a fiendish joy in watching
them drop or tum somersaults as you shoot - a joy the greater from your
sense of new-gained safety after peril. That intoxication fades as quickly as
does the glamor of war. 1 o

Llewellyn then goes on to trace the replacement of glamour and

excitement by drudgery. Long marches, burying dead men in shell
holes, sanitary chores, digging trenches, the discomforts of living in
trenches, but ever careful to present a balanced picture he introduces
anecdotes about incidents which relieved the tedium and which
revived the feeling of romance. Perhaps the most pervasive aspect
of this experience was the sense of comradeship, conveyed quite
well in his account of German soldiers singing:
You have heard a lot about the way the Germans sing; it's true all of it.
Singing is a part of the German soldier's life; a part without which you
cannot imagine him- how could he accomplish without it all that he has
to do? The first thing we did when we were quartered in a village was to
hunt the place over till we found some asthmatic old harmonium, to gather
round it and sing- sing so that you could no longer hear the harmonium
wheeze. Then just think of singing on the march. When men are tired and
hungry - when the knapsack rides them like an old man of the sea - when
the deadly monotony of Boots Boots Boots is torturing their very souls
irregularity and they have neither the strength nor the will to look up and
54 0 appendi ce s

away- then you pull out your harmonica and pipe into 'Musketeers are
happy fellows' or 'Lippe Detmold'. At first they scarcely notice it; but as
the rhythm dins into their numbed consciousness you can see their drawn
faces take on a trace of expression - to the right and left of you they are
falling into step, unthinking, obedient to the instinct that tells them that
rhythm means rest. The tune is ended; you take it up again, louder- and
again - and again. And with the tune the words swing thro' their minds,
with the beating of the words comes the desire- nay, the will, to sing-
fighting its way up from the depths of consciousness, up thro' the crushing
load of weariness- fighting its way free- and they do sing. That song and
another and more - each one cheering them, giving them new strength.
How could they have made those August marches without song! u

It may be significant that Llewellyn attempted no serious political

analysis of the issues of the war. In trying to provide a rationaliza-
tion for joining up on the German side he mentioned, with varying
emphasis on different occasions, such factors as his admiration for
the Kaiser's army, his debt of gratitude to Germany, his thirst for
experience, his desire for military training, and even sympathy for
the underdog (for so he regarded Germany). The nearest approach
to a political statement appears in a letter posted from the front:
I know now that the German Government did not provoke the war; neither
by overt acts nor by covert intrigues. I know that the German Government
was forced by circumstances over which no single nation had control to arm
itself against attack during decades and to take up the war in 1914.•••
Result: The German Nation, all that is German, is in danger, in fearful
danger, and without guilt. This summons me, who owe Germany so much,
to do what I can to help. And so I have accepted the chance to serve in the
best army in the world, and get what I have longed for so earnestly: military
training and discipline. Furthermore, aside from gratitude and the chivalry
of fighting against odds, aside from the purely selfish interest of military
training, I shall be in the greatest epoch of the century. I shall see history
made and see it in Germany with an understanding that few have had
because I saw the beginning of the war in France.... Germany is under-
going a re-birth. The commercialism which threatened her had already
begun serious inroads on her moral life and stamina, on her idealistic
tendencies, and on all that is high and noble in her people.
The war has not uprooted this, but it has gone far towards so doing. The
people have met the crisis and in meeting it have left much of the everyday
dirt behind; and the sacrifice of blood and tears is none too great when such
a result can be given to a whole nation. This new birth I can see, comparing
my memories of three years ago with what I see today. And I can feel it.
It is the sense of this that keeps me here now. 11
 appendices 541

It can readily be conceded that Llewellyn's motives for joining up

and for changing sides could be quite easily explained in terms of
adolescent impulsiveness or a desire for 'experience', and are in any
case largely a matter for speculation; but there is an affinity between
his legal writings and his writings about the war that should not be
overlooked. There is a basic seriousness underlying his war essays.
Whatever their literary defects, they are fascinating and revealing
documents. When they are read as a group two themes stand out:
the first is Llewellyn's concern to catch on paper the quality of his
experiences-the atmosphere and what it was like to be there. It is
a form of realism which takes as its standpoint the subjective view
of individual participants. In a more subdued and less obvious way
Llewellyn frequently adopted the same stand-point in his juristic
writings. This is perhaps one important difference between him
and the overwhelming majority of other jurists. His secret hope for
The Common Law Tradition was that some judge would say that it
read as if its author had been present at the deliberations; The
Cheyenne Way is unusually evocative even for an anthropological
work; in a more intellectualized way his concern with role, tech-
nique, perception of the situation and with daily work reflects his
abiding interest in seeing things from the point of view of the parti-
cipants themselves. This may help to explain the self-conscious and
sometimes rather strained 'literary' quality of his legal writings. If
one's object is to present the subjective reality of participants, it is
not enough to talk detachedly in terms of 'role conception' and the
like, one must also seek to catch the atmosphere of courtroom and
office and the 'feel' of actually doing the work. Conventions of legal
scholarship no doubt curbed Llewellyn's natural inclination to catch
the ineffables of 'feel' and atmosphere; he had no such inhibitions
when writing about his military experience and in some of his other
non-legal writings.
A second recurrent theme in the war essays is no less apparent
but is less easy to interpret. This is the idea that all the participants,
the soldiers on both sides, the inhabitants of occupied territory, and
Llewellyn himself, were all ordinary, for the most part decent,
human beings caught up in events beyond their control. The sug-
gestion that the ordinary soldier is not to be blamed for the horrors
of war may be linked to Llewellyn's seeming indifference to what
the war was about. There is a distinct note of apology underlying
this theme, as if Llewellyn is trying to explain away some feelings
54 2 appendi ce s

of guilt, perhaps for having chosen the 'wrong' side, perhaps for
having been involved in, and for having enjoyed, fighting, perhaps
for some other reason. Some critics, who unfairly accused Llewellyn
and other realists of being indifferent to questions of value, may
have sensed in his legal writings a similar tendency to shy away
from open discussion of great political or ideological issues and to
concentrate on such matters as legal craftsmanship and juristic
method, where technical proficiency can arguably be treated as
being 'neutral' between competing ideologies in the way that a
skilful engineer (mechanical or social) or an efficient bureaucrat or
a machine can be an effective instrument for furthering various
political or social ends.

1 A. note on tJw SIJUI'CU. The most detailed written accounts of Llewellyn's war

adventure are to be found in 1M History of tM Class of Nimtem-Fiftem (4113-6);

reports in the Tale Daily News (esp. Bl Feb., 17 March and 14 Apri11915);james
W. Gerard, My Four rears in Germany, 237-8 (1917); an interview with Llewellyn's
mother by· a correspondent of the Brooklyn Eagle (Literary Digest, vol. 15, 7 April
1915, go8-10); Drobnig's 'Karl Llewellyn and Germany'; and an unpublished
'Account by Arthur L. Corbin of his association with Karl N. Llewellyn', dated
116 September, 1965 and sent to Professor Eugene Rostow. None of thes~' accounts
is totally reliable; the class-book and the Tale Daily News are closest in time to the
events and are based on Llewellyn's personal statements, written and oral. They
are typical examples of undergraduate journalism. Gerard's account is brief and
rather vague. Gerard does not mention Llewellyn by name and ends: 'What has
since become of him I do not know.' By coincidence, Gerard became a partner of
the law firm with which Soia Mentschikoff, Llewellyn's third wife, was associated
for a time. The interview reported in the Literary Digest, besides being a report at
third hand, contains some inaccuracies (for instance, Llewellyn is said to be half-
German) and is written in sentimental journalese. It must accordingly be treated
with suspicion. This is unfortunate in that it contains a number of details not found
in other sources. Corbin's account, written out in long hand when he was nearly
ninety, is based on old memories and contains a few minor errors of detail. Corbin
even at that age had a remarkably consistent memory. Drobnig's version is based
in part on the memories of Hans Lachmund, in part on an investigation of the few
surviving official records in Germany and in part on some of the sources cited in
this note. The account in the text has been pieced together from the above sources
and checked against the memories of a number of informants who heard Llewellyn
tell the story himself. There are a few discrepancies of detail between some of the
versions, but there is general agreement on the main outline.
I Gerard, op. cit.

• Llewellyn, MS., K.L.P., V,1.

' Quoted in History of tM Class of Nimtem-Fiftem, op. cit., 4116.
• Ibid., 24-8. Doubted by Drobnig.
• 14April, 1915.
 appendices 543

' Ex rei. Soia Mentschikoff llewellyn. According to an unconfirmed report this

category designates an American citizen who has served with the armed forces of
the enemy.
• K.L.P., B,V, I, d.
'Ibid., V. I, i.
1o Ibid., 13-4·
11 Ibid., g-1o.
11 History of the Cl4ss of Nineteen-Fifteen, 424-5.
Appendix B
A Restatement of Llewellyn's
Theory of Rules

INTRODUCTION
This is an attempt to assemble in one place some of Llewellyn's
most important general statements about legal rules, their nature,
their functions, their place in the institution of law-and-govern-
ment, the values and dangers of making them the sole or main focus
of attention, their role in American state appellate judicial decisions,
and the kinds of rules which he considered to be the most desirable.
It is only a 'theory' in the loose sense of a reasonably coherent
collection of thoughts about a topic; these thoughts include some
conceptual analysis, some broad factual generalizations, and some
value judgments and recommendations.
Two principal sources have been used in this restatement: the
manuscript of an unfinished book on The Theory of Rules and The
Common Law Tradition, supplemented by a few passages from
earlier writings. The manuscript is undated, but internal evidence
suggests that it was probably written at some time during the period
1938-40 concurrently with or shortly before the preparation of the
Storrs Lectures on 'The Common Law Tradition'. Most of what
follows consists of verbatim quotations; where, for the sake of
brevity or clarity, Llewellyn's own words have been paraphrased,
references to relevant passages supporting this interpretation are
given.

I. 'RULE' AND 'RULES OF LAW'

(i) 'Rule'
(a) 'A first working description of a rule could be: a form of
 appendices 545

words built to further the continuing organization and government

of human conduct' (New Bramble Bush, ch. III,I).
(b) In ordinary usage 'a "rule" is general, and not limited to one
person or occasion. A rule ought to be in clear explicit language, and
if the rule is really clear, it is or can be put in such language' (Theory
of Rules, ch. I, I). Ordinary usage does not tell us how general or
how precise a proposition must be to deserve to be called a 'rule'
(ibid., III, Ig).
(c) In some contexts the term 'rule' is used to describe a practice,
as in the statement: 'As a rule x behaves thus'. (Llewellyn termed
these 'real rules' or 'rules of conduct'.) In other contexts a 'rule'
prescribes how those subject to it must, ought or may behave (rules
for conduct). ' "Paper rule" is a fair name for a rule to which no
counterpart in practice is ascribed. (Jurisprudence, I2) In some con-
texts description and prescription are fused when 'rule' is used, as
often happens in the use of the term 'custom' (The Cheyenne Way,
ch. II). Here, unless otherwise stated, 'rule' is used in its prescriptive
sense.
(d) 'What is true of "rules" is a fortiori true of "principles"-
which, being conceived as broader, invite even more to looseness of
thinking. Which of you has not seen books "on social science" in
which the "principles" laid down were now descriptive of prevailing
practices, now of prevailing aims or values, now the author's notion
of what people ought to do to get where they wanted to go, and
now his notion of where people ought to want to get to-with the
reasoning proceeding as if all these were mud-pies of a single mud'
(Jurisprudence, 85). Llewellyn sometimes quoted with approval
Pound's distinction between precepts, concepts, standards, ·prin-
ciples and ideals (e.g., ibid., 3-7, 354).
(e) In the 'Theory of Rules', rules are not equated with 'com-
mands' nor with 'predictions', rather 'rules' are chiefly considered
as normative propositions (esp. Theory of Rules, ch. II, passim). The
ideal type for such propositions is 'If X, then Y' (ibid., VI, I). (See
below (ii) (b).)
(f) In this ideal type a rule is articulated in propositional form;
in everyday life much human behaviour is in fact guided by 'rules'
that have not been given verbal expression at all (see esp. The
Cheyenne Way, ch. II, and below, (ii) (d.)
54 6 appendi ce s

(ii) Rules of Law

(a) Rules of law 'are measures, measures to be judged against
their purposes' (Theory of Rules, I, xo). Seen thus the simple form
of a legal rule is: to further this end (purpose) this legal consequence
is prescribed (means of effecting purpose) in this type of situation
(scope).
(b) A simple theoretical model (or 'ideal type') of a legal rule is
'a general proposition indicating a general situation of fact and
prescribing for any concrete situation falling within the class a legal
consequence of described and limited character' (III, 3). Thus in
the simple proposition 'if X, then Y', X is 'a category or class of
possible states of fact (as: "Dealers selling wares which contain a
hidden defect through which a buyer suffers personal injury")'
(VI, x), andY 'is a category or class of legal consequence ordained
by the positive authority concerned to follow on due official per-
ception that a state of fact duly presented for official action falls
within the category X (as: "are to be made to pay damages to an
injured buyer in the amount of the injury")' (VI, x).
'The assumptions as to the nature of the categories are constant.
What varies is either the sphere of application of the rule or the
ordained legal consequences, or both, and nothing more' (Ibid).
(c) '"Legal Concepts" are 'the categories given us by the legal
order as the proper units to have rules of law about' (VI, g). Some
'legal concepts' indicate the area of application of a rule, i.e. the
factual situation (X); those may be termed 'situational concepts';
others refer to a legal consequence M, e.g. 'injunction' or 'execu-
tion' ; other legal concepts, e.g. 'public utility', do not fit into the
simple propositional scheme, because 'they range into the worlds of
fact and legal consequence both at once' (straddle concepts) (VI,
4). Some legal concepts (like 'contract', 'sale') represent a major or
minor classification of a whole body of related legal rules. In the
Theory of Rules Llewellyn gave particular attention to situational
concepts, especially in respect of problems of classification (ch. VI)
and of what he later termed 'situation sense'. 'The problem of
guidance by rules is the problem of guiding, by rules of law, the
classification of emergent raw states of fact' (Ibid., 8).
(d) The propositional form 'If X, then Y' is only a theoretical
model. 'Current rules may be in that form or they may not' (III,x8).
Rules of law are in fact very varied in respect of degree of articu-
lation, clarity, simplicity or complexity, quality, consistency with
 appendices 547

other rules, etc.; the 'purposes' of legal rules are similarly varied
(I, 10); so also are the institutional contexts of the operation and
use of legal rules (e.g. Jurisprudence, 19-21 12); the propositional
model is adopted as a tool for expressing certain relatively simple
ideas.
(e) In the common law there are important differences between
'case law rules' and statutory rules. The principal difference is that
statutory rules are expressed in fixed verbal form. (Bramble Bush,
47, Theory of Rules, ch. IV, see above, 240). Typically, case law rules
are not expressed in fixed verbal form and 'can be found and
recognized in or under seven divergent and only more or less co-
extensive formulations. In our law, "the" rule rephrases of itself,
almost, to adjust a notch or three, a compass point or four, to the
call of sense, in what even when almost automatic is nonetheless
highly creative "application"' (The Common Law Tradition, 181).
Even in the same judgment the 'same' rule may be restated at more
than one level of generality (see above, 232ff).
(f) Despite the differences between case law rules and statutory
rules, there are important similarities. For instance, 'the range of
techniques correctly available in dealing with statutes is roughly
equivalent to the range correctly available in dealing with case
law materials' (The Common Law Tradition, 371).

2. THE PLACE OF LEGAL RULES IN THE lNSTITUTION

OF LAW
Rules of law occupy a central place in the institution of law (The
Theory of Rules, I, 19). 'Any realistic worker in law must see [them]
not only to be existent, but to be highly useful, indeed vital' (Ibid).
But the institution of law is only part of the machinery of social
control (or indeed, of the machinery for doing the 'law-jobs') and the
rules of law 'are far from making up all that there is to law and the
things of law' (Ibid). For example:
(a) To study 'law' should, and usually does, include the study of
much beside rules of law.
(b) To practise 'law' involves dealing with much else beside legal
rules and requires skills and knowledge beyond skills in handling
and knowledge of legal rules.
(c) 'Legal research' should, and does, include not only the ex-
position and analysis and evaluation of positive rules of law, but
54 8 appendi ce s

also study of subjects in which actual behaviour rather than notional

ideal behaviour of officials and others is the main focus of attention.
(d) In order to correct past imbalance, 'substantive rights and
rules should be removed from their present position at the focal
point of legal discussion, in favour of the area of contact between
judicial (or official) behavior and the behavior of laymen; that the
substantive rights and rules should be studied not as self-existent,
nor as a major point of reference, but themselves with constant
reference to that area of behavior contacts' (Jurisprudence, 16).
(N.B. This, dated 1930, contains an element of over-statement, cor-
rected in later writings).

3· THE PLACE OF RULES IN LEGAL SCIENCE

'A pre-science of behavior must deal with behavior as its center;
and the Rules and Concepts have importance to it in so far as they
are products or tools or causative factors in behavior' (Law in our
Society , 79). (N.B. However, legal science is only one part of
Jurisprudence.)

4· THE FUNCTIONS OF LEGAL RULES

Substantive rules of law are in fact used for various purposes, in-
cluding:
(a) guiding, or controlling or limiting, the conduct of laymen
(e.g., Jurisprudence, 17);
(b) guiding, controlling or limiting, the conduct of officials; in the
case of appellate judicial decisions typically the rules guide rather
than control decision (The Common Law Tradition, 179); however,
'where the rule rates high in wisdom and is also technically clear
and neat, the guidance is indeed so cogent as, in effect, to be almost
equivalent to control or dictation; so, also, when the measure is
technically well designed and the rule is a legislative product of un-
mistakable policy and is too fresh off the griddle for modifying
circumstances to have supervened' (The Common Law Tradition,
179)·
(c) aiding the performance of the functions of 'the counsellor'-
e.g. predicting the outcome of a dispute, drafting a 'court-proof'
document, shaping a transaction (in all of these prediction is an
element). N.B. Persons other than 'counsellors' are also concerned to
 appendices 549

predict-the counsellor's client, Holmes's 'bad man' etc. (esp.

Jurisprudence, 323ff).
(d) justifying decisions, typically by judges,
(e) supporting a conclusion in argument advanced by an
advocate,
(f) describing the practice of courts and other official agencies.
Typically this use assumes that such practice 'conforms to the
accepted oughts on the books' (Jurisprudence, 17, and x(i) (c)
above); such conformity should not be taken for granted (e.g.
divorce, Law in Our Society, 37, and see generally Stone, Social
Dimensions of Law and Justice, 728ff (xg66).)
(g) Generally (i) as one of the principal instruments for perform-
ing the law-jobs; (ii) 'The rule phase of law-stuff is peculiarly well
adapted to getting moderately similar results across space, time,
and divergency of personnel' (The Common Law Tradition, 23) i.e.
for promoting regularity and uniformity of behaviour of officials and
laymen.
Llewellyn was aware that not all legal rules directly confer powers
or duties; in his discussions of the functions of rules he seems to have
had these types of rules in the forefront of his mind.
(h) Llewellyn, like many of his contemporaries, repeatedly
emphasised that legal rights are of little value if they are not
backed by effective remedies: e.g. 'if rules were results there would
be little need of lawyers' (The Bramble Bush, 18; cf ibid., g).

5· GRAND STYLE AND FORMAL STYLE RULES

(i) Rule-of-Thumb and Principle
As a first distinction, then, within the field of rules oflaw to be expressed in
the form of propositions prescribing the legal consequence of a described
type of situation of fact, let us note as at one pole the rule-of-thumb, in
which the flat result is articulated, leaving behind and unexpressed all
indication of its reason; and let us note as at the other pole the way of
principle, in which the reason is clearly and effectively articulated, and that
articulation is made part of the very rule. Most current rules will be found
mixed of the two elements; the one prevailing here, the other there; and we
shall see that the two lines of approach call for differences in language
machinery, and conceptual machinery, and in the structure of the rule.
Rules-of-thumb, for instance, consort most happily with detail, with narrow
range, with circumscribed as well as prescribed legal consequence, and with
use of external signs to mark their application, whereas the vice of principle
55 0 appendi ce s

can be a vaporish vagueness, and the techniques of its effective formulation

are not easy to isolate for communication and use. But of that hereafter.
The point here is that a stable closed universe of states of fact, and concepts
skilfully built to fit that world, and turned to use by formal logic of the
schoolmen's type, is the ideal world to which the rule-of-thumb type of rule
of law is perfectly adapted. A next point is that such an ideal and such a
logic pulse through our own legal system as one of its main currents, and feed
especially that part of legal work we know as 'legal reasoning'. The last
point, to sum up this part of the discussion, is to repeat that the European
attempts to cope with the problems of their law on such a basis have shat-
tered of necessity upon the shifting character of modern conditions.
It is thus in regard to their emergent problems, their emergent groupings,
their emergent new significances that we find the continentals developing
their construction by analogy, or opening and widening their gaps-in-the-
law (that is, in the rules of law) to fill up with what we should call judicial
legislation, or construing 'as the legislat[or] would have meant it if he were
speaking today and to this problem,' or sizing up and weighing the interests
typically at stake, as a guide to 'interpretation' - that we find them, in a
word, escaping limitation by the word, and using their rules rather as guides
than as either compulsions or limitations. Thus, it seems a sound generaliza-
tion from their experience to say that when the problems or the facts change
form and meaning fast enough so that whatever reformulation machinery
the system offers cannot be expected to keep up, then rule-of-thumb
precision is no optimum for the relevant rule. Too much of it, under those
conditions, invites - nay, seeks to force- a rule to work results which,
though they fit its language, yet either shock its own implicit reason or, if
its reason also be outdated, then just shock reason. Under such circum-
stances, even case-hardened literal-minded judges squirm; and experience
shows that squirming judges mean uncertain and unpredictable results, as
sense of general decency in result rolls in its wrestle with sense of legal
decency in rule-work. Finally, we have seen that irregularity of result means
imprecision in the positive rule of law. Its partial positivity then belies its
certain form: no optimum there (The Theory of Rules, ch. IV. See further
Twining, The Karl Llewellyn Papers, 81-g6, where this chapter is printed
in toto).
(ii) (a):
The quest becomes then one for guidance, first, as to when a court will use
some particular one of such 'correct' techniques rather than any other; and
second, as to when it ought to.
This discrimination between when it will and when it ought to, is the
discrimination between rules for counselors and rules for judges. The
counselor's basic need is accurate prediction; the judge's is clear guidance as
to how to decide. A well-built rule can indeed under certain conditions serve
 appendices 551

both needs at one. First, if judges would abdicate their duty of serving
justice, an accurate statement of past judicial practice could tell them how
to decide. But judges will not ignore justice consistently, even if accepted
jurisprudential theory tells them to - as once it did. Second, if there is a
clear, and plainly wise, and plainly applicable rule, it can be followed by a
court, and it will be, and a counselor can predict that rather accurately. But
our prevailing stock of rules contains many which are either not so clear, or
not so plainly wise, or far from plain as to when they apply (My Philosophy
of lAw, 189-9o).
For counsellors and courts, at least, the most desirable kind of rule
of substantive law is a 'rule with a singing reason': 'a rule which
wears both a right situation-reason and a clear scope-criterion on
its face yields regularity, reckonability and justice all together'
(The Common Law Tradition, 183).
(b) The Grand Style tends to promote the creation of such rules:
• . . the future-directed quest for ever better formulations for guidance,
which is inherent in the Grand Style, means the on-going production and
improvement of rules which make sense on their face and which can be
understood and reasonably well applied even by mediocre men. Such rules
have a fair chance to get the same results out of very different judges, and so
in truth to hit close to the ancient target of 'laws and not men'. Of the results
of such rules, handled in such a manner, one can rightly say that Carter
pungently but wrongly said of the common law of his own day: 'forefelt, if
not foreseen' (Ibid., 38).
(iii) (a): Apparently simple rules can give a misleading impression
of 'certainty'. 'The sign-post of this in the law is the naive announce-
ment so often met: "The principle is clear, but there is difficulty,
there is uncertainty, in its application." This means that cases
unlike in fact and outcome have been successfully verbalized into
one jumbled pile' (Jurisprudence, 8g).... 'the simple-seeming rules
about the passing of title to chattels remind us, [as does] that extra-
ordinary legal category "choses in action", forms of words which
have a surface-simplicity can delude wise men by the thousands,
over the generations, into overlooking a hundred sins and a thous-
and unreckonable uncertainties' (The Common Law Tradition,
429)·
(b) The Formal Style, in taking 'rules-of-thumb' as a model,
tends to promote such pseudo-simplicity (by inference: Jurispru-
dence, 304).
(iv) A major concern of Llewellyn's was to work for the increase
in the incidence of Grand Style rules.
55 2 appendi ce s

6. RULES IN AMERICAN STATE APPELLATE JUDICIAL

PROCESSES
(i) 'That the rules of law alone, do not, because they cannot,
decide any appealed case which has been worth both an appeal and
a response' (The Common Law Tradition, 18g).
(ii) Despite (i), 'effective', wise decisions are taken regularly by
American state appellate courts (Ibid., 561, Index: Rules of Law).
(iii) 'Rules are not to Control, but to Guide Decision' (Ibid., 179.
See above, 4(a) and (b).

(iv) 'The Law of Compatibility':

If application of the seemingly apposite rule is compatible with sense, then
the use in the deciding of both sense and the rule narrows the spread of
possible decision and significantly increases the reckonability not only of the
upshot but also of the direction which will be taken by the ground on which
the decision will be rested. To know this both limits the field of doubt and
sharpens the eyes of inquiry (Ibid., 18o).
(v) 'The Law of Incompatibility'
If application of the seemingly apposite rule is incompatible with sense,
then reckonability of either upshot or direction of the 'ground' of decision
depends on factors apart from rule, sense, or both. To know this is to escape
futile upset and to recognize instead the presence of danger and the need
for exploration 'outside' the simpler areas of inquiry (Ibid).
(vi) 'The Law of the Singing Reason' (see above, 5(ii) ).
There is a valuable discussion of Llewellyn's published writings
on rules by Moskowitz in II Villanova L. Rev., 480 (1g66). Dr
Moskowitz did not have access to Llewellyn's unpublished works
at the time he did his research.
Appendix C
Extracts from Law in Our Socie[J:

A Horse-Sense Theory of The

Institution of Law
(unpublished course materials, 1950 edition)

The table of contents and three hitherto unpublished extracts from

the Manuscript of Law in Our Society are reproduced here. The
object is to give an indication of the nature and state of this docu-
ment and to make available some of the more important passages
which supplement Llewellyn's published writings. As much of it is
in note-form it is neither elegant nor easy to understand; allowance
must be made for the fact that Llewellyn did not consider the work
to be complete or in publishable form. Permission to print these
extracts has been given by his literary executrix, Professor Soia
Mentschikoff Llewellyn. Except in a few places, which are indicated
by square brackets, the original text is presented without emenda-
tion or comment.

(i) TABLE OF CONTENTS

I. Introductory
Lecture I. The Course in General
Lecture 2. Theory of the Law Crafts, Preliminary. What Lawyers Are
For
Lectures 3-4. Basic Theory of the Institution of Law: Functions and
Fonns
II. Truth and justice
Lecture 5· Theory of Theories and of Truth
Lecture 6. Theory ofjustice, Preliminary
Lecttll'es 7-8. Theory of justice, Developed -levels, elements, methods,
machinery. Inherent nature of the ideal.
55 4 appendi ce s

III. The Traditional Lines of Approach

Lecture g. Right Law and Right Reason: the 'Natural Law' and
'Philosophical' Lines of Thinking
Lecture IO. The Hard-head and the Ship-shape Thinker: 'Positive' and
'Analytical' Lines of Thinking; 'Science' in Law.
Lecture 11. Law's People and the Law: 'Historical' and French and
British 'Institutional' Lines of Thinking; Sociology of Law;
'Science' About Law
Lecture I2. Theory of Imbalance, Exaggeration and the Generations.
The Ideals of 'System' (philosophy) and of 'Objective Validity'
(science). Synthesis and Balance.
IV. Theory of American Appellate Decision -Appellate Courts
Lecture I3. Theory of Problem-Solution in General
Lecture I4. Theory of Dogmatics in General
Lectures I5·I6. The American Appellate Court in Particular: Peculiari-
ties, Craft-style, Period-style, Current Situation, Right Rules,
Right Opinions, Right Methods.
V. Skills, Esthetics and Ethics of the Crafts
Lectures I7·IB. Appellate Advocacy
Lectures Ig-2o. Counselling (over-advantage; negotiation; the need
outside or against formal law, from persuasion through influence
into 'law mcht')
[Lecture 20: The whole problem other than 'legal' controls? Yes, as
background.]
VI. Continued (i.e. seen as Crafts, primarily?)
Lectures 2 I-22. Legislation (herein of Codes and of pressure-groups)
Lectures 23-24. (Prob. trad)
VII. Ideals and Possibilities in Our System
Lecture 25. The Liberties: Leeways and their urges as the very guts
Lecture 26. Non-traditional Lines: T.V.A.
Lecture 27. Soviet Challenge
Lecture 28. The World

(ii) PART I. LECTURE I. THE COURSE IN GENERAL

I. I. Three main themes of the course, played in counterpoint:
(a) Necessity and functions oflegal institutions, in the nature of man and
of groups. 'Society', as a large and complex grouping, taken for discussion
more or less as a single Entirety. The stress is on matters of continuing and
current vitality.
(b) Operating machinery: the Law, the crafts, and the craftsmen, also the
buttressing and companion work done by law's people - all in their relation
to the eternal law-jobs and to one another. The stress is on current American
conditions.
 appendices 555

(c) Goals and critique. The stress is on current problems: craft, local,
national, world, and personal.

1.2. Objective of the course:

1.2.(a) Not 'Jurisprude~efor the Hundred': i.e., not the more esoteric tradition
of the writers about the writers and for the writers. Especially: not in the
language or in the general tradition of professional philosophy. (T. R.
Powell: 'jurisprudence on stilts'. E.g. Sidney Post Simpson on jerome Hall
on Hans Kelsen, 23 N.Y.U.L.R.:
'Jerome Hall, in his essay on "Integrative jurisprudence," gives us one of
the best critiques yet of the Pure Theory of Law. As Hall says:
". • . The particular incongruity of joining an idealistic epistemology
with a naturalistic ethics in a legal philosophy should be evident. For on
the dogmas of logical positivism, the propositions regarding and expres-
sing rules oflaw, the basic legal conceptions, and the greatest part of the
affirmative and important contributions of the Pure Theory are simply
'nonsense'. And, from the 'critical' standpoint, the naturalistic ethics
of the Pure Theory is utterly indefensible. This basic incoherence of the
Pure Theory is a certain index of its inadequacy."
'When men disagree about truth throughout generations, the issues have
been misposed': e.g. 'What is the sole correct definition of "Law"?' (A
definition not only takes in, but thrusts out). 'What is "pure" Law? What is the
"Science" of Law?' (Note the conception of a single possible science. And
's~ience' means what?) 'What (meaning: what alone) gives Law its
"Validity"?'
(Note: The major writers, and most of the minor ones who have stuff, have
been much too good to hold their actual work within the confines of their
own conscious - and always inadequate- definitions, much less within the
frame of the pithy slogans of half-truth by which they have become known
to their non-readers. Good writers have thus seen and felt and dealt with
real stuff, but they have been for the most part as much hampered as
helped by their conscious intellectual tool-kit. They are therefore always
worth reading, and especially for what one may call their by-products,
which make rich ore in the measure ofthe man's 'feel' for his material. Even
the writers about the writers are likely to yield this type of good by-product,
though they have been getting harder to read as the horrible tradition has
grown up of borrowing the vocabulary of academic philosophy. What is
here rejected as subject-matter of the course is thus not the great writers
nor the good stuff they have written, but primarily the tradition of the last
century or so about what issues are important. A crowning example is
Kelsen - probably the most rigorously logical of all - as he developed his
conscious and in my view sterile theory of 'pure' law, on which infra; yet
shrewd and amazingly accurate and fruitful observations on the ways of
things legal are scattered through Kelsen's writings like currants through a
55 6 appendi ce s

cake. Many are collected in Lauterpacht on Kelsen, in Modern Theories of

Law (1933).)
1.2.(b) Instead, the subject matter of this course is 'Jurisprudence for the
Hundred Thousand': for the Bar in daily living, and for the citizen who is
willing to take a moment off to ponder. 'Jurisprudence with hands and feet.'
What questions bite in regard to what you, and your times, are up against,
and what light is to be had on those questions? 'Good theory cuts ice'. And
theory, as contrasted with rules of thumb based on other people's theory, is
not 'good' to any man unless he can understand it and make it his own. Per
contra, the wider and deeper a man's grasp of theory which does work, the
more effective his own work can be, and the richer his life. - There are
certainly times when theory must go deep. We shall not shun deep theory,
at such times: compare Part II, especially Lect. 5· But we shall do our best
to avoid abstruse theory: what cannot be discussed in ordinary language we
shall leave to the specialist; that is what he is for.
Meantime, it is my conviction that all the fundamental, and most of the
minor, problems of Jurisprudence have a level at which they can show
themselves in simple terms and in simple relations with one another. Above
this level are the layers of technical complexity of'the Law' in any particular
going legal system. Below it are the layers of metaphysics. (Is a 'fact' a fact
when a legal Copernicus or an Einstein may come along tomorrow? What
do we 'know'? How do we 'know'? Etc.) The game is to keep both top layers
and lower layers from interfering with work and understanding in the place
where an ordinary mortal can grasp meaning - while still keeping touch
with the bearings of both the top and lower layers. 'Almost any rule of law
can be put into language an ordinary man can understand.' The same is
true of problems about law. Both jobs badly need doing.
1.2.(c) 'Jurisprudence for the Hundred Million' is the next and needed step
beyond. Men understand teamplay, in athletid!, work, marriage, or govern-
ment; then they can understand the guts of Jurisprudence. They need to.
The question is the hard one of learning how to say simply what is in fact
Simple. Law's people need this. They love it when they have it. It is their
institution of the law, of which they are a major part and to which they give
the major meaning. (The bank clerk and the Negotiable Instruments Law.
The warehouseman and the Uniform Warehouse Receipts Act. The union
and the Wagner Act. - The citizen in general?)
1.2.(d) Even for the layman, the institution oflaw- and government- is a
cultural study of peculiar value. For the lawyer, law is also the most im-
portant of the fine arts (as will appear). Rightly seen, law, as the integrating
discipline of all society, should serve also as an integration, for the indi-
vidual man of law, of all his knowledge and experience, to gather, guide and
enrich not only his professional but his personal living.
To this end, many ancient 'central' issues need to be reassessed andre-
posed. E.g. what is Sovereignty, and Where, in our system, does 'it' reside?
 appendices 557

lacks body as against such issues as: Can we organize a World? How? Can
even pieces of a world survive if we don't manage to? Again, What is Law?
and What is A Law? are not central and crucial questions, but minor sub-
questions capable of various workable answers, whereas a really fruitful
line of questions is: what is a useful, or the most useful, material and way of
organizing study about things legal, in order to get significant light on what
needs knowing and doing? Again: Such pseudo-issues as Is Law certain? and
should Law be certain? (Jerome Frank's obsession) and Do rules control the
action of officials? prove, each one, to be a false issue which needs re-posing
before any discussion of it can make sense. One thing badly needed is a
childlike fresh look at What? and fresh question as to Why? and How? and
Whither? ('But the King has no clothes on!' 'But what is law for?')
1.3. Material and Approach of the Course:
1.3.(a) Not 'Philosophy of Law,' but philosophy about things legal. Not, that
is, the contemporaneous polysyllabic professionalized academic discipline,
applied to 'law', and all tied up with who derived how much from whom,
and 'schools,' etc. (Cf. Pound's classifications in Law & Morals.) In contrast,
what is here sought is old-fashioned non-professional 'philosophy': general
serviceable life-wisdom about some body of material and its homely but
basic meaning for life and for man. And not 'oflaw': i.e., no mere arrange-
ment from within- but 'about law': i.e. a sizing-up from outside which only
then moves on in for a resizing up from inside.
1.3.(b) Not 'history of thought' or sequence of thinkers or our 'cultural heri-
tage' in the matter. There will be little effort to meet or present any man's
thinking as a whole, still less to place men in series. Adequate critical study
of single great thinkers is most rewarding: but we lack time for it. See 1.3(f),
below. The sequence of thinkers, especially when seen against their times,
is also highly illuminating (cf. Pound's Interpretations); but again the problem
is one oftime if the job is to pay. Here the choice is, instead, to select from
the literature, as from life, ideas and suggestions which help cope with what
you and I and the country and the world are up against. (Literature and
life are taken as a common stock, and 'credit' is given only by accident.
There is nothing original here, that I know of. Even what, by chance, may
not have been said once or a dozen times before has still been there for
anybody to see if he would only look.)
1.3.(c) Not 'Science': too little is known, in any Scientific fashion. Proper
Science (even though undergoing constant development and change) has a
significant degree of arrangement and order, with relationships sharply
defined and approaching accurate statement by quantity; its results can be
checked and agreed upon by skilled men with no ax to grind. In the disci-
plines dealing with man what we have is a sort of semi-Science, even on the
more physical side (physiology, medicine), which moves as one approaches
the study of man-in-groups into pre-Science-dotted with dubious, largely
disconnected bits of more or less established quantitative relations. In the
55 8 appendi ce s

legal field, in the main, we do not even know the rawest of raw facts, let
alone quantitative relations. E.g.: What percent of cases which come to law-
yers get settled? Is there any relationship between size of case, or kind of
case, and settlement (and is such relationship modified by such factors as
incidence on a metropolitan-urban-rural scale or incidence by section of the
country, etc.)? In the legal field what we 'know' is (1) partial and spotty:
itching, growing pimples of near-knowledge here and there upon the other-
wise unblemished skin of ignorance; (2) almost wholly uncoordinated,
chunk of 'knowledge' by chunk of 'knowledge'; (3) 'known' quite differently
to different people, according to whether they have observed at first hand
(and that narrowly or widely, wisely or with eyes blind with prejudice), or
have talked with a few (and with which?) people who have observed at first
hand, or have 'read something somewhere', or just grew up with an idea, or
'had a case once' (one case, once), etc. (Consider the complete revolution in
our general 'knowledge' about the D.A.'s office, about the quantitative
incidence of jury trials in the criminal picture, and about the frequency of
reversals of conviction on 'piddling technicality' which began with the
Cleveland Crime Survey of 1919). Finally (4), as suggested by the Cleveland
job, much of what we 'know' about things of law just isn't so.
In such a situation, the best approach to a whole-view, on the side of fact,
and to some degree on the side of function (spotting, at least, certain lines
of non-health or even disease) consists in mustering the various more careful
and useful studies, carefully assessing the limitations but extracting their
suggestive corrections of ordinary 'common sense' or common nonsense,
trying with their help to build an imaginative working whole, and presenting
it so to speak with the parts which have been somewhat investigated and
checked painted in a different color from the parts which rest on the writer's
personal but 'unproved' 'knowledge' as an expert, and these last painted in a
different color from the parts about which the writer knows that he is re-
duced pretty well to guessing. (Kluckhohn's Mi"or for Man is a recent
popularizing but careful instance; Ogburn and Nimk [off], Sociology, is a more
limited, and beautifully sustained job of the sort.) That is the kind of job
which this one ought to be, but is not. The ten years which would have been
needed for a proper full canvass and assessment of the dots of things which
have been explored with some care, those years have gone instead into the
Uniform Commercial Code. Hence what there is to be had, of semi-Science,
is drawn on here only when I happen to have run across a piece of it. This
does not mean that there has not been careful effort at substituting probable
fact for prejudice and mere guess. See 1.3.(d). It does mean that the effort
to present a working wholeview has consumed my powers.
Yet the presentation here, on the fact-side, aims at being pre-Science
rather than mere opinion or random observation or the like, in that the
effort to spot what seems to be really so has been sustained, and in that
effort is made, in regard to stuff on the mere opinion-level, to mark it off as
 appendices 559

such. But all ofit is non-Science in method, in so far as no effort at all is made
to suggest proof of anything (except perhaps of the real nature of our system
of precedent). Illustrations are used never as proofs, but only as means of
making clear what is being said, and of calling up the reader's available
experience for examination. If the propositions advanced on the side of what
is there to look at are not obviously true as soon as thought about, that is
just too bad.
The material is in part non-Science in a further and important aspect. It
endeavors, throughout, to take account of values which are simply not open
to verification or 'validation' by scientific means. A whole-view must
wrestle with such problems of value, and must in so far move beyond the
purview of Science. But here again, the effort is sustained, both to keep my
views on values from obscuring my view of the facts, and to keep views on
values from purporting to be other than what they are: fighting faiths.
1. 3· (d) The essential method of the course, then, is the use of Horse-sense in
an effort to get a Whole-view, and to maintain Balance in that view and in
dealing with any particular aspect of the things of law. Horse-sense is not
the sense of a horse. Horse-sense is the kind of highly informed, distinctly
uncommon, better-than-common, expert but not scientifically demonstrable
know-what and know-how which a David Harum had about horses and
other horse-traders. In matters legal it is 'the forgotten obvious' that lies in
the comer unnoticed. The job of horse-sense jurisprudence is the job oflyric
poetry - to make the trite come alive, become real and vibrant with mean-
ing; to make men take in and thrill to the what and the whither and the
how of what is there and what is to be done.
I.g.(e) Broad truths, not 'general' or 'universal' truths, are the goal on the
observation and description side; and roughly workable, not 'accurate'
phrasing. Different times and cultures and individual persons show huge
ranges of variation not only in particular behavior, but in manner of thought
and manner of response, manner of selecting the significant. In things of
law, in particular, the current legal system tends to strongly condition even
perception of when and where there is a problem to be coped with. My own
background of direct observation is dominantly American, Northern,
urban, bourgeois, Protestant gentile, academic, liberal, 'private' rather than
'public' law, 'office' rather than 'litigation'- and of course contemporary.
I have done what I could to become conscious of each such limitations and
to develop corrective cross-bearings, both by direct contacts and by reading
and conversation -as will appear. To a considerable degree I think I have
learned to see, effectively, and to report fairly, facts which I do not at all
enjoy seeing, and to spot when unfamiliar facts are significant and to go
hunting for their significance. But 'horse-sense' remains conditioned by the
man who thinks he has it. To persons of any other background I say only:
do not junk my alleged observations of fact merely because they may seem
at first blush prejudiced in the seeing. Thirty years have gone into trying to
56 0 appendi ce s

get them reasonably cross-lighted. They ought, at least, to cross-light your

own. Frequently, I think they are reasonably close to 'general' truths.
1.g.(f) One main test I have used for judging of the accuracy of reports:
of fact and of the completeness, typicality and significance of fact observed
or reported, is whether and how the material fits into the gestalt, the general
configuration, of things of law as I have come to see them. This is a line of
testing which can be self-deceptive and essentially circular, new data being
either left 'unseen' or so 'seen' as in the very seeing to be distorted into
harmony with the apparatus of ideas that controls the eye. Nonetheless, a
major test of any purported whole-view is its ability to accommodate new
data without either distorting them or needing serious remodelling of itself.
And a companion-test of any such whole-view is its adequacy in the weight-
ing of new data, and especially the help it gives in making any new type of
fact signal its own incompleteness and the lines ofprofitable further inquiry for further
relevant new data. A working whole-view, one of a functioning institution as
contrasted with a picture primarily of form, lends itself readily to this type
of test; and one gains confidence in his 'feel' for the nature of the institution
and for the gestalt of a process when that 'feel' has repeatedly proved out,
on further inquiry.
x.g.(g) The 'law-crafts' is a concept to bridge between broad truths and the
concrete problems which face the institution and its individual craftsmen.
'A sound discipline must feed into and be fed out of the daily problems of the
practitioner.' (Compare natural science and technology: or the theory and
practice of medicine.) Compare Lecture 2.
1.4. Limitations of the Course
In addition to what has been said, the course suffers especially from time-
pressure. Jurisprudence means to me: any careful and sustained thinking
about any phase of things legal, if the thinking seeks to reach beyond the
practical solution of an immediate problem in hand. Jurisprudence thus
includes any type at all of honest and thoughtful generalization in the field
of the legal. It is, thus, the heart and body of any sound study of and for the
law, and the parts of it which extend beyond 'the state of correct prevailing
doctrine in this nation' should make out by far the better and greater 'half'
of sound professional legal instruction. So that (granted effective teaching)
a law school can be rated in adequacy by how much of its instruction is
devoted to jurisprudence. And jurisprudence, as a field of study, is quite as
bulky and complex as is any nation's 'law'. It is, however, the Cinderella of
the law curriculum. 'Every course should be (or 'is') a course in juris-
prudence' is a defensible slogan for many forward-looking schools; but what
that slogan means in operation is: some crumbs from every table, but ob-
scured by the fact that all the emphasis is on something else, on some part,
some aspect- rarely on whole-view as such, never sustainedly on whole-view,
never sustainedly on putting-together of a whole as a central and vital job.
 appendices 561

To this last, grudgingly, a faculty may allocate two semester units, or three,
out of seventy-six.
How, in that time, can the indispensable go- or 40-unit job be 'done'?
As I see it, only by treating the course as one in method, rather than in
subject-matter. The problem is to learn and practice seeing and thinking
from the vantage-point of a whole-view, which is a way of seeing and judging
anything at all, including all the things this course will never get a chance to
mention. The problem is, secondly, to draw together, to mobilize for action,
the multitude of bits of jurisprudence now scattered all over any decent
curriculum. I see no way of doing that directly; no instructor has accurate
knowledge of the detail, though he can illustrate and stir the process by
explicit treatment of some of his colleagues' more obvious - and neglected -
contributions. But a sound framework to the functioning institution and a
sound way of inquiring into its problems draws out of a student a mustering
of his available experience, including precious things he has met in other
courses 'but just didn't think about'. On such person-by-person contribution
by the student a course like this depends utterly. It cannot in two or four or
six semester hours provide subject-matter needing one or two solid years
for study.
The topics chosen for fuller development claim to pay their way, but
except for Lectures I-4 and !)-I I they represent essentially arbitrary
choices. One can illustrate by Lectures 6--8, on Justice, and by Part VII.
Justice should certainly be cut into, but a single lecture could meet the
bare bones need. Per contra, each of the four topics in Part VII would
reward expansion into at least four lectures. Again, many vital lines of
inquiry are touched at most in passing, either because I lack confidence in
my available background of horse-sense about them, or because I do not
feel that I have thought my way far enough into them, or just because 28
lectures are not 88. For example: the crucial problem of trial of fact, or that
of bar organization, or that of the meaning of such particular major lines of
institution as Contract, Property, Association or Taxation, or the interrela-
tion of various types of control device (with particular attention to manners,
ritual and 'imaginary environment'), or the pre-legislative and legislative
processes. And so forth.

(iii) LECTURE 2. THEORY OF CRAFTS AND OF THE

LAW CRAFTS, PRELIMINARY. WHAT LAWYERS
ARE FOR
2. I. I. What a craft is: an organized, persisting body of skills and men to get
some line of work done: e.g. carpentry; whaling; advertising; 'the practice
of law'; advocacy. ('Craftsmanlike' is the adjective; 'crafty' reflects abuse
by the craftsman unless, as in negotiation or war, manoeuvers and even
deception are part of the craft. We shall here reserve 'art' for the 'fine art',
for the quest-for-beauty aspects of craftsmanship as contrasted with just
56 2 appendi ce s

getting the work done, or for the closely related extra andfnon-communic-
able know-how of the better craftsman.) The fact and idea of crafts focus as
nothing else does (except the rearing of the young) the home?J daily processes of
interaction between individuals and the closer groups and laTger sociery aTound them.
Except for the fringes of genius and new experiment, the crafts include not
only all of technology but all of traditionally communicated life-wisdom
(e.g. husband-handling) and all of the organization of work and of manage-
ment. The vital gains from use of the concept are that you can not think of a
craft, as such, apart from the line of work which that craft centers on: this
forces active critique. And you cannot think of a craft, as such, apart from
the craftsmen and their daily practice: this forces you down to people and
cases and results. Finally 'craft' opens up by necessity the picture of the
whole, because the organization and working of the whole move in any
persisting social grouping, almost exclusively by way of the set-up and
interlocking of the crafts. 'Craft' is a queerly neglected concept which we
propose to put to work.
2.1.2. Make-up of a craft: a craft is thus a small institution, and everything
true of either is true of the other, except perhaps in so far as it is rather rare
for a man of a craft not to be conscious of at least some part of what his
craft is for, whereas participants can grow into major institutions practically
without awareness [e.g. housewives and the market].
2.1.2.1. The stuff of the craft.
(a) A known goal or set of goals, function or functions, job or jobs to get
done. Where the specialization has been by drift, with no overall plan, one
finds frequently enough an amazing hodgepodge of diverse jobs: the
'lumber yard' stocks building materials in general, and fuel, the 'drug
store's' prescription department is hard to locate; 'the' 'private' 'practice of
law' (as the organization of any large firm shows) includes a considerable
number of crafts as diverse as those which once specialized out of, or
gathered in around, work in wood: carpenter generally: specializing e.g.
into sawyer, cooper, fletcher (with arrow-heads, string, feathers added),
wheelwright and cartwright (with smithy-work added), shipwright, cabinet-
maker. The lawyer, generally, has specialized e.g. into litigation 'depart-
ment', estates, corporations, taxation, public relations, managing partner,
research (and see below for a more functional line of sub-division).
On the other hand, pressure of work and need for skill can lead, with or
without planned drive, into single-function specialization (diamond-cutting;
tea- or wine-tasting; negligence jury-practice - or in the older days, out of
the King-and-Council, treasury-administration (the Exchequer) and then
a Court.)
Some of the problems of a craft, as of any other institution, diverge
according to how far the job or function concerned approaches the single
('felt' operating correction of any muffs in articulate theory), or the con-
scious, or both. (Job-analysis.)
 appendices 563

2.1.2.1.(b). The ways and skills: Organized and interlocking: as simple a process
as sharpening a pencil calls for different treatment of wood and lead; how
complicated a finger-job buttoning a button really is you will find by trying
it out with the other hand. Team-skills of course call for timed gearing
together. The degree of complexity and organization (and of variation) becomes
clear only when one begins to break 'a' skill down for purposes of instruction
or of substituting a mechanical or routine operation. (Thus 'the' art of
correctly 'reading' a court decision, with various ways, e.g., (i) of disting-
uishing; (ii) of following, though distinguishable; (iii) of expanding or
changing direction.) The ways and skills must, as a body, be relatively
lasting, or we think of them not as constituting a craft but as individual
achievement. A craft is something typically common to many people, and
extending across generations, though in these days the technology may
change with amazing speed.
2.1.2.1.(c). An economic base is normal to a craft, though I should include
sport, dance and music for fun in with the -crafts. The value may be in use
(cooking for self) or in team or in exchange (household, restaurant, army
cooking; canning, cooked foods for market). Crafts become socially im-
portant in any regime of divided labor, where some 'laymen' to the craft
become dependent on the craftsman, and where the craftsman becomes
more or less dependent on the laymen for a livelihood.

The foregoing represents a partial re-do of the following

(I) A croft: a body of skills and men for getting something done: carpentry;
advertising; advocacy.
(a) A known goal or set of goals: jobs and ideals.
(b) A relatively stable body of complex and organized ways and skills -
interlocking.
(c) Partly teachable and taught: the rule of thumb; articulate theory.
'Taught Law' (which means not merely the verbalized Rules of Law,
but also the ways of law, the whole going System so far as taught by
'breaking them in.') 'Taught Law is tough law'- even when it is
bad law.
(d) Partly learnable and learned: apprenticeship; 'practice'; 'breaking
. ,
m.
(e) The extra 'art' element of intuition; of experienced know-how; of
genius.
(f) Men manning the craft; relied on; reliable?
(g) The problem of reliable minimum competence and uprightness of
the men.
(h) The problem of organization and ofleadership.
(2) The Ways of Crafts
(a) A craft forms around a lasting line of work perceived as such.
56 4 appendi ce s

{b) Bulking work means routine: 'rules' may emerge; it certainly means
specialization and subspecialization.
(c) The craftsman is inescapably shaped- even in imagination- by his
craft as given again: (apprenticeship; breaking in). (Become a lawyer
and you will never be the same again. And our judges were lawyers.)
(d) The craftsman may also contribute to his craft; if so, his contribution
may become common stock. (How far does the skilled lawyer's skill,
today, die with him?)
(e) Craftsmanship as service and price v. What's in it for me? and What
will get by? The problem of conscious craft-standards and ideals.
The Old Man you learn under. Compare jessup on Root.
(f) The monopoly-tendency of the craft (the campaign against un-
authorized practice of the law; the policing of admission to the bar) ;
how of the policing after admission? The monopoly tendency of the
craftsman: the '"V' stock-in-trade' approach to knowledge and skill.
The black-art, mumbo-jumbo approach to the layman v. modem
counselling and drafting of documents. Monopoly, protected by law,
connotes responsible, even-handed service to all, at a fair return.
Well?
(g) Specialization by unplanned drift is typically a conglomerate (the
drug store; the lumber yard; the practice 'oflaw'); specialization by
way of planned drive can seem to approximate 'single'-function
(machine-tools; diamond-cutting; negligence jury-practice or estate
and probate practice).
(h) Production-engineering and effective instruction in the crafts:
diagnosis of peculiarly significant lines of skill, for observation, for
communication, for gathering and comparison of variants, for re-
study and improvement of method. (How much of this is being done
in legal education?)
(3) Stability and change in crafts (Addition: Degree ofleeways? Death if ideals
die out.)
('The job of the institution is to manage the job in hand: the "book" and
the set-up, the staff-plan, the colonel's political judgment, the shavetail's
ambition, the sergeant's experience, the private's pride in his outfit - any
one or two may break down in the particular pinch, but a well-geared
machine takes up the slack.')
(a) Without development and recurrence of patterns of performance we
get neither large-scale operation nor relative similarity of results
across time and space. Individuated artistry is rare, uncertain, fre-
quently expensive and too frequently absent.
(b) All patterns tend into routine; routine tends into woodenness. Errors
in initial design of pattern continue; needed adaptations fail of
discovery or acceptance. To vested inertia is added vested interest,
 appendices 565

vested habit, vested emotion and vested conviction. 'Young man,

you are asking me to rethink everything I know.' The trouble be-
comes greater if a vested defensive ideology has had time to form:
'It is best as it is because .• .' Or if the craft bulks large enough to
pillow the impact of reform-drives.
(c) In a live craft, change comes constantly from within, via the crafts-
man's feeling for the changing needs of the felt job, and via invention
followed by imitation (even though working frequently under the
brake of attempted monopoly of secret knowhow: 'my' or 'my out-
fit's' trade secrets). In a deadened craft the pressure is more typically
by revolt from without. The layman tests a craft by results, rarely
understanding either craft-problems or craft-techniques. The layman
can therefore rarely mgiMer a cure or reform. The leeways he allows
the craftsman are correspondingly large. But he undercuts the craft's
prestige by his grumbles. And he can, and has 'cut off the head.'
(d) Within the craft much of youth is typically in revolt (cf. Pinder's
'Problem of the Generations'). But the revolt is typically (i)revolt; the
pseudo-radical mainly after his own slice of the pie; and (ii) pseudo-
reform: the substitution of exaggeration No. 2 for exaggeration No. 1,
leaving out of account the values actually underlying No. 1's exag-
geration. (Typical: procedural 'reform' into pure looseness; or the
first efforts to de-judicialize administrative procedure.) Meanwhile,
growing into craftsmanship conditions the youth into tolerance,
patience, satisfaction, smugness. (Look too often on that hideous
face .•. ) Finally, fighting-fire dies low; the fighting reforms of any
day prove abortive or become slowly absorbed; and few men develop
more than one set of fighting ideas in one lifetime.
(e) What is true of patterns, re technique, is true of 'lower motives' re
motivation. A surge of idealism can kindle, but it cannot alone sup-
port an institution ('the law of kindling') ; idealism burns out unless
machinerJI is provided to supply patterns of work, to enlist habit, and
to adequately satisfy drives for gain, prestige, power, etc. (Note the
use, in wise institutions, of such drives as lust, envy, hate, etc.) Here
lies a central engineering problem of any type of reform of any aspect
of the institution of law or by way of it.
(f) A peculiar and peculiarly important aspect of change is the shift of
'period-style' in the work of a craft - akin to such shift in architecture,
the drama, or music. This has been noted re the institution of law
chiefly as an alternation of periods of relative growth and rigidity
(e.g. Pound's 'stages of legal history'). The stress here is not on the
substantive law, but on the craftsmen's manner of work, thought,
ideals. Is the ideal and technique a Parke 'strong' opinion, arriving
by reasoning no layman can follow at a result no layman could
foresee? Is it direct, obvious soundness of result, reshaping the legal
56 6 appendi ce s

machinery as you go, as typified by Mansfield, Marshall, Cowen,

Gibson, Parker, Shaw? Is it severe reverence for old form, even while
readjusting to current need, as in the K. B. of the growth of as-
sumpsit and the jurisdictional fictions? Is law-work to lord it or to
listen, or is law-work to labor to do each, as needed? Why any contrast of
goal? - The cause and process of change in dominant period-style is
still largely unexplored. {Though the relation of such broad contrasts
to contrasting types of human temperament ought to be obvious.)
(4) The lAw-Crafts ••••
(a) Their range (by tradition): chairing, client-getting and handling;
office-management: general counsel as central corporate staff-man.
{b) The basic functional law-crafts center on eternal human needs, in
all human groups: spokesmanship, decision, advice: trouble-shooting,
generally, in regard to the teamwork of people.
(c) Acquaintance with the Rules of Law and with the nature and ways
of tribunals and officials in a particular country, and the 'legal'
background or context of many of the lawyer's activities, affect and
heavily color his work in the law-crafts, but the essence of his work
would continue even if all the Rules of Law (and even the courts)
were abolished tomorrow. 'The Legislature can repeal my whole
discipline (Wissenschaft} tomorrow' is a complete misconception; the
discipline has in such an idea been misconceived as being merely the
systematized Rules of Law and their doctrinally correct 'application.'
5· Spokesmanship, as Illustrative of a Craft which Can Of Course Divide into Any
Number of Sub-Crofts
(a) Sub-variants outside law-work: compare the union representative;
the lobbyist; the majority leader; the introducer of a bill or of a
motion in nomination; public relations counsel; the advertiser;John
Alden. Inside law-work 'proper': jury advocacy, appellate advocacy,
arbitration-advocacy; negotiation; the crystallizing of discussion-
results; the drafting of the public statement. 'Lawyers' (meaning
those many admitted persons who, though admitted, had never
really learned any of their crafts, and had misdone much of their
work) were anathema to F. H. La Guardia; 'lawyers' still are
anathema to many business and many labor men. One can add, as to
that unhappy kind of admitted persons, to many judges, and to me.
But that has to do not with the job of spokesmanship, but with the
mishandling of that job. Let me add, for the meditation of the
critics, that I have seen lawyers' jobs mishandled as badly by non-
lawyers as by any lawyers; and that I have seen even otherwise
sweetly arranged jobs muffed by non-lawyers at times, for lack at the
critical moment of a lawyer's proper experience. Of course anybody
with sense knows that spokesmanship calls (along with general
 appendices 567

technique) for full understanding of both the whole situation with all
its unspoken implications, and of the nature of the interested parties,
and of the nature of the particular tribunal.
(b) The 'speech'-need: experienced, ready, effective voicing for, and
answering objections for, the shy, the slow of speech, or the over-
truculent, the brash or the inexperienced, those with status-handi-
caps, etc. Cf. the oldest child or smartest child or favorite child, for
the family child-group.
(c) The 'buffer'-need: elimination of direct emotion; more dispassionate
'outside' judgment. ('A lawyer who handles his own case has a fool
for a client.') The buffer-need can arise anew in the middle of a
negotiation which is breaking down.
(d) The 'knowledge'-need: familiarity with and access to needed stores
of experience (in the Rules of Law, in the 'ropes,' in the nature of the
situation, in the nature of the adversary or deciding personnel).
(e) The 'investigation'-need: spotting, getting, marshalling the signi-
ficant facts.
(f) The 'judgment'-need: Skill to diagnose a trouble-situation, to spot
what we need; then to spot and articulate the favorable issue that
lines it all up our way, and to spot and phrase the appealing solution.
(g) The 'persuasion'-need: skill to find and ring the right bells, whether
in an adversary (negotiation) or in a tribunal (court advocacy) or in
the legal or lay public (the opinion-writer).
(h) The 'art' additions to the rule-of-thumb.
(i) Mediation as double-spokesmanship either for inexpert or face-
involved parties; the Ifugao monkalun; the U. S. conciliator; the
family friend.
(j) Spokesmanship need not be adversary. A man may become the
voice of the whole. The judge; the war leader: Churchill; Brandeis
as 'counsel for the situation.'
(k) Note how these same lines of skill, with different arrangement,
weighting and flavor, recombine to produce much, even most, of
what is needed in such other law-crafts as legislation, administrative
policy-shaping, commercial counselling, negotiation, office-manage-
ment, client-handling.
6. The human prejudice against being a 'thing' - manipulated.
(a) All crafts have to wrestle with people's sense of personal dignity, and
those which like the law-crafts deal with direct approach to moving
people into action become particularly suspect.
(b) But no lawyer should ever waste time 'defending' himself or his craft
against any imputation of manipulation: that is his .function, within
the bounds of decency; and any layman can be made, in ten minutes,
to see the value of spokesmanship.
56 8 appendi ce s

(c) Hence, in regard to 'manipulation,' the problem comes up, head-on,

of purpose, and of character. Of personal uprightness, and then of that
wisdom which means vision for the Whole.

(iv) LECTURE 5· THEORY OF THEORIES, AND OF TRUTH

5.1. What a theory is:
5.1.1. First, on the 'fact' side (looking toward an ultimate Science) a theory
is an attempt at significant and accurate observation of what is there and
what happens and to state a significant working truth about it. The effort
is to get at effective working relations general in their character. Among the
difficulties are:
Seeing at all. It is hard to notice the too familiar (as a lawyer with a cause
immediately 'sees' in an adverse case only its irreducible holding and the
lines of distinction, but in a favorable case the true broad rule it an-
nounces). Or to notice the habitually neglected (as, that 'delivery' as a
situation has two ends). Or to see the unwelcome, or the badly lighted.
We 'see' not only in native gestalt but also with the spectacles of concept
(in legal work we have learned gestalts: our legal concepts) and of un-
conscious conditioning about what to look for (you v. a Maine lobster-
man, looking for weather signs), and of desire (selective observation,
weighting and arrangement).
But a theory of fact has no business to imply, or to be read as implying, that
the person announcing it either likes or approves or desires what he seeks
to describe. (As: 'A government of laws and not of men is, as such, im-
possible.')
5.1.2. Second, on the 'value' side (looking toward or derived from a
Philosophy): a theory is an attempt to state significant right goals, together,
in matters legal, with conclusions regarding right action in a problem-
situation. Here, approval is implicit in announcement.
5·•·3· Third, on the 'operating' side (looking toward or derived from a
practical craft or practical policy): a theory is an attempt to state an
effective working measure to deal with a problem-situation, or a type of
situation. This may be either of the technological or cook-book variety (as,
'A brief gains in persuasive power in the measure of its simplicity and
clarity' or: 'This brief will gain, etc.') in which case the operating theory
rests on 'fact' theory under (a); or it may be a theory of practical desirability
(as: 'What we need to do is •. .') in which case the theory contains a goal
aspect which rests on 'value' theory under (b) and also an effectiveness
aspect which rests on 'fact' theory under (a).
5.1.4. Nothing has standing to rate as a 'theory' unless it purports to have
been seriously considered; and in the main men do not seriously consider
anything unless they are bothered. A theory is therefore likely to be affected
by the bother.
 appendices 569

5.2. Pareto's Theory of Theories (superbly exemplified in Pound's description

of the sequence of jurisprudential theories).
(a) What was there in the theory for the men who made it?
(b) What was there in the theory for the men who accepted it - (or else,
why did men not accept it)?
(c) The cynic thinks the goal-aspect of the theory to generate and to
distort the fact-aspect. Too often, it does, resulting in faulty fact-
observation, fact-arrangement, fact-theory. The cynic also thinks
acceptance or rejection of a fact-theory to depend not on its accuracy,
but on the goal-desires or prejudices of the relevant public. The
cynic also thinks the goal-desires in question to be commonly low
and to be hidden under prettified allegations (lust under love, greed
under honor, jealousy and hate under justice - and on down into the
Freudian- sometimes enlightening- menagerie of motivations). Too
often for comfort the cynic is right in any or all of this. But there are
men whose motives are really high. And sound fact theory stands
also on its own. And a louse may have a good eye, and a man pure in
heart a poor one. Hence:
5·3· Pareto's Theory Corrected.
(a) On the observational side, what difference does it make whether the
observer was a louse, if he saw straight? (Machiavelli's Prince is one
of the shrewdest bodies of observation in print.) Pareto merely
explains, psychologically, bad observation or reading of evidence,
when it occurs, and warns that it keeps occurring.
(b) On the side of evaluation, if the particular goal-theory helps you see
straight, it makes no difference that the other fellow got it because
he was 'frustrated' or otherwise insane, or that he used it to cover
dirty work nor yet that he linked it with seven other ideas which were
insane or even vicious. (E.g. Napoleon, Hitler and Stalin have been
thoroughly sound in perceiving a vital need for world-unification of
government.) Which leads into the
5·4· Theory of Truth.
Two ultimate kinds of truth:
5·4·1· Testable truth: in any particular age, place and technology, all
competent observers can agree, regardless of what they would like to find.
This is the basis of any Scientific approach. (I deal with only 'empirical
science' as Science, plus, by courtesy, so much of the logical branches as any
competent students can agree on.)
(i) A constantly and usefully expanding realm, based on
(ii) prior recorded research and new labor and investigatory techniques
and
(iii) with all data and results held always subject to correction; but
(iv) never in itself sufficient to produce a whole view of anything.
57 0 appendi ce s

5-4-2. The time-variability of testable truth is of importance to legal work

only in those fringe-areas which are both (a) in motion or uncertainty at the
moment and (b) of practical impact. Even thinking about matters legal is,
as legal philosophy, concerned with change in testable truth only in so far
as the fact and nature of such change can hope, some day, of developing
practical implications.
5-4-3· Non-testable truth is in my view also truth, though nobody can ever
test whether he has it by the tail. Our beliefs about what truth is in this area
are based on tradition, revelation, authority, intuition. Agreement is pos-
sible only among those who see it the same way. The area especially of
ultimate meaning, of values, of man's goals; and also of the individual 'art'-
factor in know-how or know-whither. Acct"ptance or recognition, not
investigation, is the basic method as to premises. One can of course explore
the bearings of premises by logic and experiment.
5·4+ Results of any operations or work in the testable-truth field are always
partial, in application to practical living: which always rests in part on goal-
judgments. While results of any admixture of non-testable truth are always
subject to irreconcilable disagreement. Both are needed, for any whole-
view, and in actual application of theory to life. This leads into
5-4-5· The dilemma of life-philosophy and of the social disciplines, the
would-be social 'sciences'. Cf. Holmes' 'Can't-Helps' by which men yet have
to live. The Metaphysical Society. The conflict between the dogmatic and
the free-opinion lines of organization of society. Dogmatism and tyrannical
fanaticism are inherently logical. Against their premise stand only experi-
ence and the sense of human dignity.
5·5· A working approa~;h:
5·5·1· Mark and remember which propositions lie in which area.
5·5·2· Re-testable truth, keep on the level of discussion appropriate to the
material and the problem in hand. E.g. The 'new' 'revolutionary' laws of
relativity and indeterminacy in metaphysical Physics are irrelevant to the
solidity of rough-carpentry or of inlaid cabinet-work or good prefabricated
houses. Almost all legal work resembles these last. (Contrast the practical
effects of some people's theories of ultimate Justice, 6.2.) Even a Berkeley
used chairs and police as did his neighbors. Even re non-testable truth, most
Americans can agree on enough important goods to keep a 'country' a
working whole, with some recognized agreed machinery for handling most
disagreements.
5·5·3· Remember that we all live almost exclusively on faith, even re
testable truth: How do you 'know' the acceleration of earth gravity; or that
the earth is round; or that there is a Governor in California; or that atomic
fission exists, or that a bona fide purchaser for value of the legal title to land
takes free of a cestui's interest? Tag every alleged 'fa~;t' in your memory with its
source. What a lawyer does, re his propositions of law (which, on whether
 appendices 571

they prevail, are propositions of fact) is good practice with every other
proposition of fact worth remembering. Indeed, most worthwhile aspects of
a lawyer's work in office or court are worthwhile for use also in his life.
5·5·4·
(a) All practical judgments must of necessity move on such working
bases: one seeks enough significant 'facts', accurately enough, with a
measure sufficiently explored as to likely consequence as to be a worth-
while 'best' move into the confessedly uncertain future.
(b) It is at this point that discussion of 'certainty' of results in the work
of law are so likely to go haywire. The certainty to be expected in
human affairs is the certainty to be expected in human affairs. Where
routine is available, the degree of certainty can be high; otherwise,
the struggle is slow, to move from coin-flip chanciness into some-
thing we can recognize as skilled or expert judgment and which we
then reward with pay, prestige, power or profit. J. Frank is a hard-
ened sinner in misposing the issue in this connection.
Queer in Frank's writing is the treatment of lawyers' counselling as
simply 'Guess,' while himself participating in the training offuture lawyers.
If they simply 'guess' when they are not 100% certain, then training them to
prey upon the public is unconscionable.
5·5· 5· Ultimate goals and ideals are like the stars to a mariner: they are the means
of a consistent long-haul, overall course. But they say little if anything of
current, or storm, or tide, or of the need to put in somewhere for fuel, water
or repairs, or of sailing around Africa to get from Bombay to London.
Measuresmustalwaysbepragmatic. Ultimategoalsguidepragmaticchoiceand
use of pragmatic measures. Any 'either-or and-not-the-other' is here, as
throughout almost all of Jurisprudence, a posing of false issues, headed for
inadequacy.
5·5·6. Re other people's 'theories,' spot which kind they are, and distinguish
the fact-phase from the value-phase for independent critique. (Measures
can always be divided into purpose and machinery, which warrant separate
study.) Re your own, you will gain clarity by spotting and marking the
different aspects and gain somewhat, re effective communication. But most
folk will still think you approve ('believe in' = desire) whatever you say is so
('believe in' = be convinced exists).
5·5·7· Excursus on analysis of institutions: Re fact-theories based on
'observation,' one useful idea is, along with factor-analysis, the idea of the
manner of the working organization of the factors, together with the net-
drive of the whole, as organized: the 'field of force' of physics, the 'ethos'
of ethnology, the 'individual constitution' of medicine, Savigny's Volks-
geist. Resort to such an idea always shows ignorance and vagueness about the
'what-else' which is at work, but it expresses also a sound perception that
even a complete analysis of factors reaches only the isolated parts of a going
57 2 appendi ce s

whole, leaving still to be grasped their importance in quantity, in position,

in quality, in function.
Similarly factors may be present, but submerged by more than counter-
vailing factors, just as important values served by an institution may be
hidden by its more explicit purposes. ('Professional ethics,' said a delegate
to the A.B.A. House of Delegates, quoting a judge of a supreme court
making a public address, 'are a device invented by old men to keep young
men from getting at the old men's business.' The ethics against solicitation
and the like serve other, obvious purposes. The problem here is one of a
submerged function. We can now discuss: 'function' for whom?)
Note that in historical inquiry the question 'Why not?' is as important as
'Why?' 'Why did this crucial case not become a leading case?' 'Why did
Mansfield's great work in Commercial Law not reach the heart of Com-
mercial Law: Sales?'
5·5·8. 'And-Not' is bad Jurisprudence. In observation of any social scene, the
complexity of material makes any exclusively single attribute or sequence
highly improbable. 'And-not' is the traditional bane of sound Jurisprudence
(and of lay thinking in general): 'Because it is A it is therefore not B' pre-
supposes a thoroughly explored, exactly defined area of discussion, divided
accurately and exhaustively into A and Not-A -which the current social
scene almost never is. Examples: 'Good lawyers are born and not made.'
(First half true sometimes; and some native capacity is indeed needed.) 'It is
not law which shapes society, but society which shapes law.' (First half
false; though much law has often failed to 'take'; but even then it may
shape heavily in unforeseen directions: e.g. Volstead Act and gangsterism.)
'A craft is a mere way of earning a living, not a line of service to society.'
(The 'mere' is true only of a craft or craftsman without the needed compass;
the second half implies a normal incompatibility between earning and
serving.)
[5.6 Truth by fiat: Fiction omitted.]
Appendix D
Llewellyn's Later
Interpretations of Realism

'Some Realism about Realism' was Llewellyn's most disciplined

attempt to provide a coherent account of realism. 1 Despite its
limitations, it remains one of the most important ·and illuminating
discussions of the pre-1931 literature. On a number of subsequent
occasions he was tempted to make further appraisals of the realist
movement. In addition to many allusions scattered about his writ-
ings there are several unpublished items specifically about realism;
however, the two most important sustained discussions appeared in
print: an article 'On Reading and Using the Newer Jurisprudence'
(1940) and Appendix B of The Common Law Tradition. None of
these later writings was as painstaking as Part I of 'Some Realism
about Realism'. Rather, they consist for the most part of detailed
comments on particular works and of somewhat impressionistic
general statements. 'On Reading and Using the Newer Jurispru-
dence'2 was written in 1939-40 and was published simultaneously
in the American Bar Association Journal and the Columbia Law
Review. It was written principally for the benefit of readers of the
former journal and set out to interpret the juristic antics of the 1930s
in simple common-sense terms. The first half is largely devoted to a
general analysis of judicial discretion and is more realistically
treated as a statement of Llewellyn's views on the subject than as a
serious analysis of the ideas of others. The second half takes the
form of a review of a selection of books on jurisprudence by 'a few
of the more striking writers' (especially Pound, Frank, Hutcheson,
Michael and Adler, Arnold, Rodell), 'though much of the best
material is in articles', many on specific legal topics. 8 It is interest-
ing to note that of the seven writers who are accorded the most
57 4 appendi ce s

attention in this article only two, Frank and Hutcheson, featured in

Llewellyn's sample of twenty 'realists' in 'Some Realism about
Realism' and that, with the exception of Pound, the others were
teaching either at Columbia or Yale. Llewellyn's article is still worth
reading as a sane and perceptive appraisal of the work of some of
his contemporaries, but it is generally too discursive and too selec-
tive to add more than a few loosely connected thoughts to his
interpretations of the realist movement.
Although Llewellyn's perspective changed between 1931 and
1960 and his own thought continued to develop during this period,
there is sufficient consistency in his discussions of realism to warrant
treating them together as a group. Some of the recurrent themes of
his other analyses are brought together in a single passage in The
Common Law Tradition:
Realism was never a philosophy, nor did any group of realists as such ever
attempt to present any rounded view, or whole approach. One or two- per-
haps for instance Underhill Moore- may (though without companion or
adherent) have conceived and even put forward his thinking as sufficiently
complete to deserve description as a philosophy, as expressing views on those
phases of the institution of law which reach beyond description and the
techniques of operation. I know of no other such, however, unless jerome
Frank's faith in the unreachability of fact be deemed of this nature 8 • No.
What realism was, and is, is a method, nothing more, and the only tenet
involved is that the method is a good one. 'See it fresh,' 'See it as it works' -
that was to be the foundation of any solid work, to ii1!Y end. From there, one
goes on into inquiry about e.g. What-it-is-for (function or goal), or e.g. to
build a judgment on how far the measure fits the purpose, or e.g. on how
far the particular purpose harmonizes with the Good Life, or e.g. on whether
we do not then have to reexamine the original data about 'How it has been
working' - a matter which often answers very differently to different
questions.
Of all of these things, only 'see it fresh,' 'see it clean' and 'come back to
make sure' are of the essence. They go to method. That method is eternal.
That is point 1. The method may have come into first discussion among
lawyers in relation to rules and judicial decision, but it is no more limited
to that area than it is to matters legal. It applies to anything. That is point 2.
But the method includes nothing at all about whither to go. That is point 3·
Realism is not a philosophy, but a technology. That is why it is eternal. The
fresh look is always th~ fresh hope. The fresh inquiry into results is always
the needed check-up.
If any person caught up in the enthusiasms of the moment paraded a
banner that suggested more than this, he was a parader, not a thinker, no
 appendices 575

r1al realist, certainly not one who had status to speak for any 'movement?
much less for any 'school.''
This passage is rather loosely phrased and taken on its own could
occasion difficulty; but if it is read in the light of Llewellyn's other
writings it is possible to make sense of it and to treat it as a fair
summary of his several attempts to interpret American legal realism.
The key lies in the assertion 'Realism is not a philosophy, but a
technology'. This statement is as important as it is obscure. The two
pc)ints are best treated as separate propositions for the purposes of
elucidation.

(a) 'REALISM IS NOT A PHILOSOPHY'

What was Llewellyn trying to deny in this assertion? Probably in
this context 'philosophy' is intended to mean 'ideology' or 'value
system' as in the term 'philosophical jurisprudence', and the only
point being made is that realism is morally neutral:
If Jurisprudence of necessity includes a study of ideals for law, then realism
is not [co-extensive with] jurisprudence. If, as I think, jurisprudence contains
[seven] sub-disciplines, then realism deals with two out of the seven: craft
techniques and descriptive sociology •.. Either or both are compatible with
any philosophy about law's proper ultimate or immediate goals or about
those of men in society. Realism in law is thus as ethically neutral as the
science of mechanics or the art of bridge-building.•
This does not dispose of the matter, for 'philosophy' is often used in
a much wider sense and in some contexts Llewellyn did not make
clear that he was giving the word a restricted meaning. Thus Justice
Charles Breitel was led to comment:
..• Llewellyn, in describing himself and others as realists, argued that the
realism was not a philosophy, but a technology for the exploration of the
law. As if technology or method could be separated from philosophy; as if
one's view of the nature of things could be divorced from one's method of
discovery and description of things. 1
Whether or not Breitel's interpretation of the relevant passage from
The Common Law Tradition is fair, he is making an important
point. For there are good grounds for believing that Llewellyn did
wish to put forward realism as a method which was neutral not
only between competing sets of values but also between different
political, epistemological or theological theories. 7 His answer to
57 6 appendi ce s

Breitel would probably have been to the effect that while acceptance
of a method may be dependent upon one's view of the nature of
things, acceptance of the method of realism does not necessarily
presuppose any particular view of the nature of things. Shortly
before Llewellyn's death, one of his colleagues suggested to him
that he was au fond a 'realist in the Aristotelian sense'. His reported
reaction was 'Don't try to pin me down to an epistemology.' 8 He
might well have gone on to say that acceptance of a legal realist's
approach does not necessarily involve taking a stand on the tradi-
tional dispute between realists and nominalists. 9
Another sense in which the word 'philosophy' might have been
used in this context is as a philosophical system or a Weltanschauung.
Llewellyn explicitly denied that realism per se is adequate as a
basis for such a system, he also doubted whether any members of
the realist movement put forward a sufficiently comprehensive set
of ideas to amount to a 'whole view'. 10 He omitted to mention that
in Law in our Society he was working towards such a statement.
Thus 'realism' for Llewellyn cannot be applied to any man's 'whole
view', if he has one. It can at best be only a part of a rounded
jurisprudential approach. As he developed his 'working whole view'
it became less and less appropriate to use 'realism' as a label for all
his legal thinking. It is dangerous to classify a thinker by reference
to a part of his thought only, for it may mislead people into mis-
taking a part for the whole. It is especially dangerous to do in the
case of 'realism'. 10

(b) 'REALISM IS A METHOD' ••• 'REALISM ••• IS A

TECHNOLOGY'
In The Common Law Tradition Llewellyn did not make it clear
whether he intended to equate 'method' and 'technology' or whether
he was making two separate points. The latter interpretation makes
more sense. It is reasonable to interpret exhortations to 'see it fresh',
'see it clean', 'see it as it works' as a colloquial way of advocating a
descriptive sociology of law for both observers and participants.
Only in a vague sense can they be said to be methodological
axioms in that they tell us to observe (and describe) legal processes,
but they do not tell us how to set about it. The shrewd practitioner
who relies on his impression of the 'realities', the systematic
participant observer and the perceptive but unmethodical com-
 appendices 577

mentator have all adopted 'the method of realism' in this usage.

There is a danger of serious confusion if the proposition 'realism
is a method' is equated with the proposition 'realism is a techno-
logy'. The latter statement can be given a meaningful interpretation
if it is restated as follows: 'Realists are concerned to study and
describe, among other things, juristic method, i.e., the techniques
of participants in legal processes.' Legal technology (meaning the
study of juristic techniques) in this sense was a particular concern
of Llewellyn's and he was, perhaps, being unduly modest in
attributing this concern to American legal realism generally. For,
while there were other jurists who were interested in the subject, it
is fair to say that some of Llewellyn's most distinctive contributions
related to juristic method, for instance his 'Theory of the Crafts of
Law', his analysis of judicial styles and his advocacy of the syste-
matic teaching of certain skills in law school. Thus when Llewellyn
says that 'realism is a technology' in that it deals with two parts
of jurisprudence, 'craft techniques and descriptive sociology', (or
that a major function of 'the newer jurisprudence' is to make the
know-how of the best lawyers 'more explicit, and so more com-
municable, and so more teachable, and so more common'), 11 it is
safer to treat this as an interpretation of his own ideas than as a
reliable generalization about the concerns of all those he identified
as realists.

(c) THE FRUITS OF REALISM

Llewellyn often complained that the critics of realism had overlooked
the theoretical significance of some of the best works by realists be-
cause of a tendency to draw artificial distinctions between 'jurispru-
dential' and 'substantive' legal writings. Thus, Jerome Michael's
'work in course books in the fields of crime and procedure establish
his standing as perhaps the most powerful and original thinker of his
time in jurisprudence. Books on jurisprudence do not even men-
tion him. Truly jurisprudence-in-English is still bound by the labels
put not only on "schools" but on book covers.' 12
In a letter to G. B. J. Hughes dated xo August 1954, he was even
more specific:
As I indicated back in 1931, the really important contributions of the Realist
movement consist of the monograph jobs that get down under a sound,
horse sense technology••.• In the main, I find the theoretical writing on the
subject to have been rather useless since the original points were once made.
57 8 appendi ce s

Thus Llewellyn's final position appears to have been that the realist
movement should be judged mainly by its influence on detailed
work in various spheres of legal activity. Enquiry into the relation-
ship between the operative ideas of judges, lawyers and legal
scholars and the ideas of particular realists would be elusive, but
could be illuminating. A general post mortem of this nature, com-
bined with detailed studies of individual writers, offers the most
promising basis for a sound appraisal of the realist movement. 18
1 Discussed above, ch. 5·
1 Reprinted Jurisprudence, ch. 7 (1940).
I Ibid., 145·

' TM Common Law Tradition, 509-10.

1 MS., 'Babel versus Teamwork: Jurisprudence since I goo', p. 5, K.L.P.,

B,III, 37(d), (1942-3).

8
Breitel, 'Llewellyn: Realist and Rationalist', 18 Rutgers L. &v., 745, 746 (1964).
7 Op. cit., no. 5· In a letter Llewellyn made a similar point in discussing the

relationship between American legal realism and Scandinavian realism. 'There is

no historical link from this Swedish writing [Hargerstrom and Olivecrona] to the
growth of Realism in this country. And I gravely doubt whether the Swedes were
influenced in their thinking by us. There is something of a psychological similarity.
Each of the two lines of thought represents reaction against an over-formalized body
of doctrine which not only led repeatedly to unhappy results, but which obscured
and made more unhappy and uncertain the working results of the legal system in
which such doctrine prevailed•••.
There is one other similarity between the Swedish thinkers and the Realistic
thinkers: the effort of each to get down to what the thinker conceives as the real
base of thinking rather than convention. But the Swedish drive, so far as I am
acquainted with it, has been a type of philosophical enquiry into the nature of law.
The drive of Realism, on the other hand, is to establish an effective legal tech-
nology. To this such a question as that of the nature of law is accidental, or inci-
dental, or even immaterial•••• ' Letter to G. B. J. Hughes 10th August 1954·
K.L.P. R. VIII 17. In this same letter Llewellyn doubted that there was any
significant connection between the juristic and political views of Realists, except
that some, but by no means all, who wanted reform within the field of law were
also interested in political reform (id). Llewellyn suggested that Pound's dislike of
Realism InaY have been politically motivated.
8 Professor D. V. Cowen, interview, Chicago, 1963. Cf. Breitel, op. cit., 755·

• TM Common Law Tradition, 510, cited above.

10 It is difficult to avoid the suspicion that Llewellyn's denial of the philosophical

nature of 'realism' had an element of associational ambiguity. When he taught

jurisprudence, 'philosophy' became almost a term of abuse. 'What the hell has
Kant to do with my course in jurisprudence?' he asked angrily on one occasion
(see above at p. I 17). He explicitly excluded from his course 'the contemporaneous
polysyllabic professionalized academic discipline' (but nevertheless gave students
doses of Aquinas to read) and in other ways he made clear his dislike, in the
jurisprudential context, of abstract discussions which had about them an aura of
 appendices 579

'unreality' by virtue of their remoteness from everyday life of ordinary practice.

His dislike of the esoteric Royal Tennis Tradition of jurisprudence has already been
remarked (at p. 1 73). By asserting that 'realism is not a philosophy', Llewellyn may
also have been hinting at a rejection of 'the esoteric tradition'.
11 Juris/JI"Uflmu, 149·
u The Common Law Tradition, 511-2.
uSee further ch. 15.
Appendix E
Two Documents on the
Uniform Commercial Code

THE KEYNOTE MEMORANDUM

From the mass of memoranda, letters, notes, articles and transcripts

in which Llewellyn's thoughts on the Code are to be found, two
documents stand out as having special significance: his general
statement to the NYLRC in 1954, which is reproduced in full in the
second part of this appendix. This is Llewellyn's most coherent
apologia for the Code, but it must, of course, be taken for what it is
-a powerful piece of advocacy. The other document, which is
presented here, is less polished and more fragmentary, but is
probably the most important single statement of the operative ideas
of the Chief Reporter. This is a memorandum drafted by Llewellyn
and addressed to the Executive Committee on Scope and Program
of the NCC Section of Uniform Commercial Acts. Headed 'Re:
Possible Uniform Commercial Code' it is undated, but was probably
written in 1940, and circulated to the committee before Schnader's
Presidential Address to the conference in September.

I. The Reasons for a Uniform Commercial Code

A Commercial Code, if successfully prepared, and if accompanied by an
adequate exposition of its reasons, its policies, and of the way its parts fit together, has
important values.
There is a very considerable body of commercial law which is very largely
non-political in character, and which can be put into shape to be flexibly
permanent. It affords, for use, a wide basis of case-law, and in many parts,
a wide basis of good statutory material, together with experience under
various Uniform Commercial Acts; also a wide basis of established com-
mercial experience.
Those portions of the Negotiable Instruments Law which deal with
 appendices 581

presentment, notice, and protest, and material portions of the present Sales
Act draft, show, moreover, that large portions of this body of law can be put
into terms which afford material guidance to the layman in the doing of his
commercial business. Law of which the interested layman becomes con-
scious, and which he seeks to put to work and to work under, is healthy
law and helpful law. A democracy needs that kind oflaw, and needs to have
citizens know they have it. A democracy needs law which is friendly to its
people, law which is known to be friendly, even neighborly law. The legal
profession needs to have the men of commerce think of law and legal work,
not as a baffling intricacy ofununderstandable technicality, but as a helpful
device which can be seen, directly, to be helpful though safety requires the
use of a lawyer's skills in developing its help. The fact that the automobile
is a friendly device has not reduced the need for mechanics; it has, on the
other hand, increased the service rendered by mechanics. But that has
depended on ready availability of the automobile to the public, on the
public's understanding enough about it to use it- and so to learn when to
consult the mechanic. So with commercial law.
The legal profession itself, moreover, needs a much greater accessibilib' of
the base-lines of the semi-permanent portions of commercial law than is as
yet available. Important as the work of the Restatement has been, the work
lacks at once compactness and authority. One has only to compare aRe-
statement to a Negotiable Instruments Law to see the difference in their
relative authority. One has only to compare one to the Uniform Act sections
on documents to title to see the relative power possessed by the latter to
clean up at once and for all old confusions on which a Restatement can
move only by gentle persuasion. One has only to compare the bulk of an
Act and a Restatement to see the advantages possessed by the Act as a filing
system for law, and as a device for orientation. The Restatement work,
moreover, is work for lawvers' consumption. Commercial law re4uires to be
for consumption by commercial men, as well as lawyers. The needed work
can profit by what has been done; but it is a separate task.
The Conference is the sole body both small enough and representative
enough, both experienced enough and flexible enough, with enough prestige
to accomplish that task. And it would crown the Conference's work....
Harmonious arrangement, simplification of language, and thorough re-
thinking to eliminate all fine distinctions which prove to have no adequate basis
in policv and practice, can tremendously ease access to commercial law, for
lawyer and for layman.
I do not suggest any chasing of that will o' the wisp, 'business law made
plain to every layman.' I do suggest that, for instance, the very layman who
is today unable to find, anywhere, an exposition intelligible to him of what a
'C.I.F.' quotation will mean to him, can make reasonable sense out of
Sections 63 and 59 (3) and {4) of the new Sales draft. He will still need a
lawyer, to tell him what the effect will be, of a provision shifting the risk of
58 2 appendi ce s

an advance in freight rates to the buyer; but he will stand a much greater
chance of seeing that he needs a lawyer for that purpose and also of under-
standing what his lawyer tells him. That is gain. I suggest, too, that with
such sections to guide, a lawyer can marshall knowledge and thinking about
the matter in a fraction of the time needed today. The Conference's greatest
achievements along this line have been the 'secondary liability' provisions
of the N.I.L., to which reference has been made, together with large
portions of the Bills of Lading and Warehouse Receipts Acts.
2. What Unifonn Commercial Acts Do Not CommonlY Accomplish
What our Acts have, however, failed to accomplish, is several-fold.
A. In the first place, being prepared as they had to be, one by one, they
have resulted in a wordiness and semi-duplication, and repeatedly in minor
discrepancies, which cost labor to work through, and often are tricky. Where
such discrepancies rest on needed shadings of policy, they are required; but
then the discrepancies should be so gathered that they can be thought about
together. Where discrepancies rest on accident or oversight, they need cure.
B. Related, but separate, is the tendency of Uniform Commercial Acts
to be drawn as if they were ordinary legislation, and to be drawn for lall!Jiers.
By this I mean the heaping up of technical language and of qualifications.
I speak with conviction of sin: no man working for the Conference has ever
produced a more complex piece of wording than the Trust Receipts Act.
It has worked well, and has stood up under heavy use; but I can now see
that the same work could be done by a redrafting which would talk to others
than those experts in the field who have been using that Act. What has made
that Act work is the high and centralized skill of the counsel who use it.
A Code chapter would not thus depend on so specialized a bar.
What is thus illustrated in extreme form in the Trust Receipts Act recurs
among the Uniform Commercial Acts at large.
Technical language and complex statement cannot be wholly avoided.
But they can be reduced to a minimum. The essential presupposition of so
reducing them is faith in the courts to give reasonable effect to reasonable intention tJf
the language.
Semi-permanent Acts must envisage and must encourage development by
the courts.
(1) The first condition of such development is language which is clear
as to direction, but which does not undertake too nicely to mark off the
outer edges of its application. The language of principle, not that of 'rule
drawn in derogation', is called for. Language drawn in distrust or anxiety
about courts' understanding may accomplish its immediate purpose, but it
paves the way with stumbling blocks within a decade.
(2) The second condition of sound development by courts is an adequate
commentary which guides to the legal material concerned as a whole. Much
of the over-detail of our Acts have been a device to discount the absence of
 appendices 583

such a commentary. The Sales Act has been tremendously helped by

having one.
For the fact is that our courts have not the time, in the disposition of single
cases, to fathom the handling of a whole field by a whole uniform act or code
chapter. They are courts of good will. But they are also courts of general,
infinitely varied, jurisdiction, working under severe time pressure on a most
heterogeneous assemblage of cases. The bearing of parts of an Act or Code
on one another and on the whole the courts are willing to see, glad to see;
but counsel do not show that full bearing, and the Conference has not under-
taken to show it, either. The Conference has instead attempted to make
particular sections do the work. And that means to cripple the long-range
growth of the Act.
A commentary is thus an integral part of any thought about a Code.
C. The third thing which our Acts have not yet done, is to recanvass their
own work, each in the light of the other and of all experience since the
drafting. The very understandable and proper dislike of Amendment, how-
ever, has no need to stand in the way of Consolidation. Nor does redrafting
accompanied by adequate statement of purpose have the dangers to fear, of
'implicit change', which accompanies mere redrafting.
At the same time, the preparation of Code chapters offers opportunities
which the present Sales draft, for instance, illustrates peculiarly. There were
strokes in the original Sales Act which, though thoroughly sound principle,
seemed 'dangerously' bold in the climate of opinion thirty-four years ago -
'rescission for breach of warranty', e.g.- but which have proved so emin-
ently satisfactory in general plan that what is now needed is to free them
from the trammels which were originally placed on them only to keep them
as little 'shocking' as possible. This, in a process of Consolidation, occurs,
as of course, on the basis of the experience since the Act.
If one sets the pending Amendments to the Negotiable Instruments Act
against such a background, he finds their whole theory to be unwise. They
were intended as, and were prepared as, patchwork. But what was not seen
as those Amendments were undertaken, and what I did not myself see when
the Federal Sales Bill- a job of essentially similar character- appeared on
the scene in 1937, was this: That if new sections represent real need, the
need extends beyond patching. And, further, that new material is capable
by hard work and thought of being integrated into an original structure very
slightly revised; 4 indeed, that such integration can result in a materially
more manageable and accessible whole than either the original Act plus
the case-law, or the original Act plus any patchwork, can hope to afford.
I submit that the present draft of the Sales Act demonstrates this; and I
submit that the patchwork project on the N.I.L. requires to be promptly
junked, and that a job like that done on the Sales Act should be undertaken.
Both jobs can be carried through, as independent projects. Both jobs should
be envisaged as prospective chapters in a Uniform Commercial Code.
58 4 appendi ce s

3· Scope of a Uniform Cornmercilll Code

The body of law of commerce which rests on a relatively permanent and
non-political basis of experience is not a logically coherent body. 'Business
Codes', for example, plainly belong in the subject-matter, integrally. Just
as plainly, they have no business in a Commercial Code: We have too little
experience with their regulation, and there is too much flux in regard to
them. 'Business Corporations' belong, in many of their aspects, obviously;
no less obviously, the divergent State policies and the unpredictabilities of
development dictate their exclusion.
A. The heart of what can be seen as promising a solid field lies in the
movement of goods, the payment therefor, and the financing thereof. This leads
directly to such a line of material as:
Sales
Conditional Sales
Trust Receipts
Chattel Mortgages
Negotiable Paper (short term, and checks)
Current Banking Account: Deposits and Drawings and Collections
Certain Aspects of Contract and Agency affecting the above (cf. Sales Draft,
Sec. 65)
Warehouse Receipts
Bills of Lading
Modern Commercial Letters of Credit
B. There would open for consideration a number of immediately related
fields:
Short Term Suretyship and Guaranty
Aspects of Finance Company business which serve banking purposes.
Damage in Transit: both as to Carriers and as to 'marine' and 'inland-
marine' insurers.
Bulk Sales and Transfers in Fraud
Partnership
Limited Partnership
C. To be avoided are aspects of Trust Law, other than such portions of
the Fiduciaries Act as deal with bank deposits, etc., or as play into Trust
Receipts.
To be avoided are problems of Small Loans and Small Purchasers ('Con-
sumer Credit'), except as possible complementary material.
D. A serious question goes to the Market for Securities, which is often felt
to be essentially commercial in character, and which is involved e.g. in the
present N.I.L., Stock Transfer Act, and Trust Receipts Act. The answer
may well lie in a separate portion of a Code, devoted to those problems. They
will be noted to include the regulation of the transactions of Transfer Agents,
with important overlaps into the Fiduciary field.
 appendices 585

4· General Procedure in Regard to a Code

The bodies of material grouped under A have an internal unity and cross-
relation which make them a useful initial group to attack. Two of the main
bodies of the material concerned, the Conference is already engaged in
reconsidering. The body of material is of itself both central, large, highly
important, and a working unit. Unless it can be worked out to satisfaction,
there is no point in tackling the other material mentioned.
The non-success of the Chattel Mortgage Act, together with the relative
success of the Trust Receipts Act, point to two other measures of procedure.
In the narrow field of Trust Receipts it has been possible not only to enlist
support of the Act, and use of it, but to fight off, repeatedly, efforts at un-
desirable amendment. The Chattel Mortgage Act, on the other hand, in-
cluded some book accounts sections and a trust receipts section which have
resulted in a continuously successful lobby against it.
The moral is clear. If matter is controversial, but needs regulation against
abuse, and for the interest of harmonious development of the field, then
there are two political steps which must go hand in hand with the general
drafting job. First, the matter due to elicit opposition must be packed into
a separate and separable portion, related and harmonious, but capable of
individual act of legislation. Practicability demands severability. Second,
there must be undertaken the type of conciliation and splitting of opposition
which worked out so happily with Trust Receipts. Practically every field of
business contains enough far-sighted, reasonable and public-minded persons
in high position, to make this a practicable procedure.
On the other hand, more or less simultaneous work on the related aspects
of the general field is highly desirable. Bank Collections and N.I.L. Amend-
ments profited hugely from being canvassed together, as Trust Receipts from
the Chattel Mortgage work. Trust Receipts were themselves dealt with
against a background of prospective regulation of Commercial Letters of
Credit and C.I.F. sales contracts, and could not have been handled effec-
tively except with attention to these matters. The N.I.L. suffered materially
from its divorce from the law of the current banking account, and from the
law of collection.
Finally, another point of procedure is to be stressed. It is my firm belief
that the putting of any Uniform Commercial Act into the form of a Code
Chapter or part thereof cannot wisely be entrusted to the draftsman of the
Act itself. That draftsman can be of tremendous assistance; but the revision
of an Act is like operation on a child, and an outside surgeon's hand and
judgment will prove steadier.
[5. Particular Procedure omitted.]
K. N. Llewellyn
58 6 appendi ce s

STUDY OF UNIFORM COMMERCIAL CODE

STATEMENT TO THE LAW REVISION COMMISSION
BY PROFESSOR KARL N. LLEWELLYN
A Simple Case on Behalf of the Code

When the New York Law Revision Commission, on behalf of

the State of New York, undertook examination of the proposed
Uniform Commercial Code, the Commission assumed a duty rare
in our history. First and most, it had a truly judicial responsi-
bility for fairness in both procedure and judgment. Second, it
had a further-than-judicial responsibility. This latter was based
upon long decades of careful inquiry by the Law Revision Com-
mission into needed changes in the law, decades of skilled and
impartial work which led to the choice of this Commission as the
body to report upon the value of adopting the Uniform Commercial
Code in New York. This second responsibility involved not only
what judges can give : full and advertised hearings; it involved
much more than that. The Commission's second responsibilty
went into a whole world of independent gathering of material,
and into independent research on a scale hardly matched even in
its own path-finding studies on "Consideration", and went, in
addition, into reducing results to available form.
With the Uniform Commercial Code, however, the New York
Law Revision Commission approached for the first time a profound
piece of legislation which had already received the benefit of ten
years of expert study, labor and critique; of sustained section by
section consideration in draft after successive draft, by two such
bodies as the American Law Institute and that same Conference
of Commissioners on Uniform State Laws which had produced
the whole body of older uniform commercial acts which the Code
will displace; the benefit of consultation and criticism by informed
representatives of industry after industry and group upon group
occupied in various areas of commerce or of commercial finance;
and the general critique of bar association committees and of an
extraordinary number of independent legal experts. What came
before the New York Law Revision Commission for study was the
result of all of this, backed by the strong and increasing approval
of an overwhelming majority of those who had given careful study
either to the Code as a whole or to specialized parts thereof.
It is against this background that the New York Law Revision
 appendices 587

Commission did its work. With obvious wisdom, the Commission

took the proponents' case as made, in major part, by history. The
Commission called for objections and for adverse criticisms first,
and what was heard first or presented first by memoranda was
objections and adverse comment. In the limited time available-
limited, despite the number of hearings-proponents of the Code
had of necessity to devote most of their attention to showing the
inaccuracy or unwisdom or unimportance of hollow objections put
forward as solemnly as if they had body and value.
In the proceedings before the New York Law Revision Commis-
sion itself, this procedure caused no loss of perspective. The Com-
mission was well along in its own independent and exhaustive study
of ·the Uniform Commercial Code and of the case in favor of the
Code. It had and used a full battery of independent resources to
judge of the accuracy of the allegations of such witnesses as mis-
stated the law. To the New York Law Revision Commission itself
the positive case for the Uniform Commercial Code as a whole did
not need to be made orally or by memorandum at the hearings them-
selves, because that Commission had already studied the pro-
ponents' case as made by the Code itself, its official Comments,
its history, and the voluminous literature that has appeared over
the years. What was needed before the New York Law Revision
Commission was at no time and on no issue any opening statement
for the proponent; what was needed was at most a brief reminder
in summation.
When, however, the remarkable and extended proceedings be-
fore the New York Law Revision Commission go in published form
before the country at large, it is respectfully submitted that the
situation completely changes.
No new reader of these proceedings can be expected to know
the Code. No reader can be expected to know the case for the
Code. No reader can be expected to spot inaccuracies in regard to
business fact or in regard to existing law; or even in regard to
provisions of the Code itself, as such inaccuracies appear in the
light-hearted language of so many of the adverse witnesses or
memoranda.
Least of all can any reader, from the proceedings as they stand
(to mention a few matters) be expected to gather any picture,
even any inkling, of the utter multitude of details, unmentioned
anywhere in the proceedings, in which the Uniform Commercial
58 8 appendi ce s

Code will clarify confused present law, or clear away an existing

mess, or settle a point now full of doubt, or simplify an unnecessary
complexity, or accomplish a narrow but needed piece of moderniza-
tion in the manner and tradition of the New York Law Revision
Commission itself.
But without some inkling of such matters no perspective is
possible. The result would be like examining the condition of a
business by listening to an allegation of large numbers of alleged
liabilities, one by one (totalling a possible hundred thousand dol-
lars) with heavy discussion of whether any single one of the items
is a real liability-while ten millions of assets go completely un-
mentioned.
As the Chief Draftsman ("Reporter") of the Uniform Com-
mercial Code and as Chairman throughout its production of the
Section on Uniform Commercial Acts which in months of sittings
combed and revised each portion of the work before any such
portion could come, in any draft, to the floor of the Conference
of Commissioners, I beg leave to insert into this public edition of
the proceedings some brief opening statements for the Code's
proponents. The statements are inadequate, they are above all
hopelessly incomplete. But they will do a little to enable the reader
who has not first studied the Code to get some idea of the ten
million dollar asset side before his attention is drawn off onto
forty-nine or eighty-nine questions of the character of whether
some one $27.50 item of February 17-or was it March 2?-was
ever ordered, was ever delivered, was up to contract, has already
been paid for, or by some accident represents one correct charge-
of $27.50.

SOME REASONS FOR ADOPTING THE UNIFORM

COMMERCIAL CODE

A. Because of Who Backs the Code

In the entire discussion of the Uniform Commercial Code not
one person has appeared (outside of Louisiana) who has not ap-
plauded the Uniform Commercial Acts as being at least each in
its own day a sound job, a wise job, and a useful job. These
Uniform Commercial Acts were prepared for the country by the
National Conference of Commissioners on Uniform State Laws.
They were prepared one by one, in the period ranging from I 895
 appendices 589

through 1934. These Acts include the Negotiable Instruments Law,

the Uniform Sales Act, the Uniform Warehouse Receipts Act (in
partnership with the Warehousemen's Association), the Uniform
Bills of Lading Act, the Uniform Stock Transfer Act, the Uniform
Trust Receipts Act. The National Conference of Commissioners-
the members are officials appointed by the several States to pre-
pare uniform laws- has also spent many sessions in work over
piecemeal amendments, in sustained efforts to modernize the old
Acts without changing their framework; and it has spent many,
many sessions on problems of chattel security and of bank col-
lection.
This is the body, with this now sixty-year record of careful
work, with this record of unchallenged success whenever its product
has been put to the test of being enacted law at work-this is the
body which has prepared and which now stands behind the Uni-
form Commercial Code-a Code over which the Conference, be-
ginning in 1 940, worked for more than ten years before the
appearance of even a first tentative final draft. What reason can
there be for believing that this great law-preparing body has so
changed its nature as to have lost either the competence or the
wisdom demonstrated by its record? No single person, since dis-
cussion of the Code began, has suggested any reason for thinking
that the skill which built the old Acts is not with us still, in
modern form. No man has dared to!
This is the Conference which backs the Code with knowledge
of it, and after years of labor over it and with it, and with en-
thusiasm.
The Conference of Commissioners on Uniform State Laws is
not alone in this. A partnership was formed in 1943 between that
Conference and the leading productive law-organization of these
United States, the American Law Institute, the organization which
had produced, by its own slow, sure and carefully tested methods,
the famed Restatement of the Law. The Institute had previously
left out of its labors the whole field of commercial law, as being a
field already occupied, magnificently occupied, by the Conference.
In 1943 the two organizations put into partnership, in order
to produce the Uniform Commercial Code, their resources, their
slowly built-up know-how, their manpower. The American Law
Institute also backs the Uniform Commercial Code. It also does
so after years of labor with and over that Code.
59 0 appendi ce s

B. Because of How the Code was Built

Article by Article there was one draftsman, or a team of two,
preparing, presenting, revising. The drafter's work was under
steady criticism and revision, typically in three-day sessions every
six to ten weeks, by a group of advisors which included experts
in the field of law concerned, experts in the field of business or
finance concerned, and also lawyers or judges of general experience
and no expertness whose important business was to see that it
all made sense and that each part could be understood by men
who were not experts. Results of any meeting were worked over,
tested out, and brought in again for any misguess to be gone over
afresh. There was constant correspondence and consultation with
any outside experts in the business or law concerned who could
be discovered and who would give the time. At all times the central
planning and drafting staff were in on the drafting; in also on
the discussions, to keep continuity, to add their own experience
and expertness, and to keep the gears of the whole Code meshed;
in on the presentations, to assure any group or floor that this was
not only a whole-job but a whole-team job.
Each year's work (sometimes each half-year's) came for review
in two- to four-day sessions before each of two singularly able
general reviewing bodies : the Commercial Acts (or the Property
Acts) Section of the Conference, each a group of I I notable for
its experienced down-to-earth practicing lawyer's approach to the
text of any proposed law, and the Council of the Institute, a group
of 30 notable especially for the membership of a large number
of able judges who size up any proposed law as a court would.
Only as the text of the year's work was shaped up by these bodies
did it come to the floors of the organizations.
Floor discussion was again in detail, section by section, with
the sustained iittention of experienced lawyers from every section
of the country, always including men who had represented various
diverse interests, men of long experience in the details concerned,
plus a most valuable range of men who had had one such case, or
two or three (in the net an astounding range of experience), with
many men also directing their attention in one large part to
whether the text made general sense, and could be easily read.
At this point let two further things be said: (a) The floor worked,
in these sessions, over all the years. They gave attention, they
followed text and debate, they did solid thinking. (b) Few votes,
 appendices 591

in any early stage, were 'binding,' save where ·the underlying

plan of some piece of the work had to be determined. 'Suggestion'
or 'recommendation for study' was the type of action. The work
of one year's floor was thus as a standard practice reviewed the
next year, after testing in between by the staff, by the advisors,
by the Sections of the Conference, by the Council of the Institute.
As the work moved toward completion, it came further under
the due attention and fire of critics of all kinds : experts from
the law schools, representative committees of interested industries
or other groups, bar association committees concerned peculiarly
with the effect on the law of their particular State, and the like.
All suggestions were worked over, often in detailed discussions
which led to solutions of increased value and to satisfaction to
all concerned.
This process of critique, and occasionally of real improvement
in minor detail, has gone on even ,after the Code had come into
seemingly final form.
Two things are notable about it :
( 1) The criticisms which have proved to have bite have touched
a very small portion of the Code indeed. In regard to any single
area of the present law, the clear improvements made by the Code
outnumber and outweigh between twentyfold and a hundredfold
such minor errors as have been brought to light by even certain
bitter chasers after error. And each real error or even semi-error
which has been turned up has been duly cured.
(2) The men who have tested the Code in use and for use, by
running it against the problems of a law course or against the
problems of a daily practice : these men have become vigorous
proponents of the Code. The men who have studied it carefully
have found their study turning them into enthusiasts. Doubts
vanish like haze on a summer morning.
The type of use-testing just referred to builds a foundation of
peculiar confidence. Because a kit of tools, whether of rules of
law or of anything else, if it is either ill-designed or ill-chosen
turns up not only an occasional bug on the things in mind, but
also an antheap of bugs on any job not consciously planned for.
Whereas a well-designed and well-chosen kit of tools will handle
in unplanned comfort any number of unforeseen jobs which may
turn up.
59 2 appendi ce s

The Code has proven, in sharp contrast to the existing law, to

be a good and well-designed kit of legal tools.
In sum: a more carefully and fully tested piece of legislation
has never been presented in these United States.

C. Because of Why it was Necessary to Build the Code

For a free economy, for soundly developing American enterprise
and competition, it is of the essence that the rules of the game
should be as simple as possible, and that those rules of the game
should be readily known to all.
The first and best reason for the Code is that the law which
governs our commerce and commercial finance is substantially
unknown to most lawyers, whether they need to know it or not,
and is almost wholly unknown to most business men.
The business men do not know even when they need to consult
a lawyer. One major job which the old Uniform Commercial Acts
did do was to cut down, so far as they went, the unknown character
of the law by reducing parts of it to relatively clear language,
easy to find. And that was both good and even then badly needed.
It showed the way.
But first, those Acts covered much less than half of the most
. needed ground; and next, their text has now come to be overlaid
by a mass of case-law which is almost as difficult to work through
as was the law before those Acts; and again, new conditions have
opened up new problems which in turn present new areas of un-
known (or non-existent and therefore unknowable) law.
Law unknown is law which is uncomfortable, and which is ex-
pensive, and which is uncertain- and, which is indeed unfair.
Important general areas of law have no business to be the monopoly
of a relatively few experts, serving a relatively few clients. Busi-
ness and finance are matters vital to all American enterprise, be
that enterprise large or small, be it rural or metropolitan; sound,
clear, legal advice at a reasonable rate is good for American
business and finance : how else is competition to be fair and free?
Such advice reduces risks, it reduces disputes, it makes for quick
and fair adjustment.
Such advice, necessary to a free-running economy, cannot be
had when the law is unknown or is hard to uncover or is confused
when found. That difficulty the Code cures to a degree and on
a scale hitherto almost unmatched in American law.
 appendices 593

The fact that the Jaw of commerce and commercial Jaw is un-
known did not become clear to me as a person until work on the
Code had long begun; it took contacts on the subject with two
thousand and more lawyers to really awaken me. But the fact
itself is demonstrated independently by Mentschikoff and by lsraels
at this Commission's hearings on the Code as a whole held May
24, 25, 1954·
Yet, interestingly, that fact is not historically one of the reasons
for undertaking the Code. No person associated with the under-
taking had at the outset any remotest suspicion of how deep, how
widespread was ignorance of our commercial law among both our
bar and our business community; still less did any man have
suspicion of how much of the 'knowledge' of many 'experts'
was smug, flat ignorance-ignorance dangerous also to their clients.
Yet the great fact of policy remains : if American enterprise is
to develop as a free economy, then the rules of the game must be
known, and they must therefore be· made readily knowable. They
must be made as simple (though adequate) and also as easy to
know, as the best legal engineering can make them. That the Code
does. That the present law does not do, in New York or any other
of our States.
Thus, regardless of the history, the result is clear: With the
Code, the law of commerce and commercial finance becomes rela-
tively quick to find, to understand, and to use. This is a typical
example of the point made above about the unplanned values of
good tools.

The actual historical reasons for undertaking the Code have

their own further and independent powerful punch.
(a) Much of the law, whether embodied in the original Uniform
Commercial Acts or not, has become outmoded as the nature of
business, of technology, and of financing has changed. Such law
needs to be brought up to date.
(b) Akin to this is the continuing presence in the law of a
large number of technical traps which can- in an era of bad times
or in a situation of bad feeling- be used in bad faith to do outrage.
These need cure.
(c) Both in areas of growth outside the old Uniform Acts and
in wide troubling areas within them there is much case-law which
is in conflict as between States and in confusion even within a
State. These matters need to be cleared up.
59 4 appendi ce s

(d) The existing law presents two lines of problems which

involve one most needed quality : to wit, the best that we can do
in regard to making law simple. On the one hand, we have areas
in which almost unbelievable and almost utterly useless complexity
has come since the first Elizabeth's time to make our transactions
dubious and expensive. Here the Code has cut in clean (and with
almost universal approval) to make 'Chattel Security,' in Article
g, an area that any thoughtful lawyer- not merely the veteran
of many decades-can, under the Code, deal with in the course
of his ordinary practice. The Code has eliminated the endlessly
ragged-edged detailed difference between such institutions as con-
ditional sale, chattel mortgage, trust receipt, and the like; the
Code provides for any financier, in any finaqcing which calls for
security in movables or in intangibles, a legal machinery usefully
stream-lined and well backed by people who really know the present
law and who therefore back the Code.
On the other hand, the case-law welter of the existing law can
sometimes point up clearly how not to make law, wherever simplic-
ity has been sought by way of some mere word-formula which does
not fit the situation and the situation's set of problems. The effort
to settle questions between seller and buyer by way of the 'simple'
idea of 'transfer of title' has, e.g., led to unending uncertainty
and confusion, and to frequent injustice. Equally, the effort to
throw into a single basket the hugely varied situations generally
classed as 'good faith purchase for value' has led again and
again either to plain injustice or to the court's jumping whatever
traces were sought to be imposed upon it-with a resulting com-
plete uncertainty.
Where operation and results are today scrambled and unreliable
even though the word-formula looks simple, then what is needed
is to re-examine the problems and the material and to come out
with language which really fits the need. This the Code has done
in regard to 'good faith purchase for value,' and in regard to
the questions between seller and buyer.
On the other hand, when useless complexity strews the path
of work with thorns and traps, the Code's job has been to make
things simpler, guiding action, giving safety. Article 9 illustrates
this.

All of the above calls for re-examination and revision of com-

mercial rules of law. But why in the form of a Code? In the first
 appendices 595

place, experience has shown wide and unhappy gaps to exist be-
tween the existing Acts. Secondly, prior work over any type of
reform has turned up repeated problems which leaped across the
'boundaries' of the traditional 'fields' of law. Sound revision
anywhere proved to call for thinking through and for testing out
the bearings on all other sectors, even where the results then
proved to show no need for changing one piece in order to fit
better with another. (Such thinking through would never have
occurred save in the process of a whole-job. It gives partial guar-
anty on a point easy to overlook : that omissions from the Code
have also been checked for.)
Meanwhile the way and degree to which the revision demanded
large-scale work which did result in large-scale change can be
seen in quick illustration if one thinks about the (no longer uni-
form) Negotiable Instruments Law: plainly that law paid almost
no attention to payment-paper, to checks in process of being used
as 'the float' of payment and collection; the NIL's concept of
transfer, etc. was directed to credit paper-especially the note.
To revise such a statute into adaptation to modern conditions
required frequently a very different body of rules from those
proper to the transfer of credit paper. These revised rules have
become the Code's Article 4 on Bank Collections. But again, the
credit aspect on which the NIL is centered is the aspect of short
term paper : the note. Bonds have long been a constant worry
and disturbance. But to sever out investment paper for its needed
treatment without including the other rnajor type of investment
paper, the certificate of stock, would make nonsense : hence Article
8 on Investment Securities.
Already one has here the subject-matter of half a Code. The
case is typical.
The Code, therefore, calls for adoption as an integrated whole,
whose parts supplement, support, mutually affect and balance
one another.

D. Because of How Much the Code Brings into Clear Form, Easy
to Find
If all that the Uniform Commercial Code had done had been to
bring together, sort out, modernize and harmonize the old Uniform
Commercial Acts, together with a Bulk Sales Act and a new and
uniform version of the old laws on accounts receivable, and the
like-if that had been all the Code did, it still would be a tre-
59 6 appendi ce s

mendously worthwhile job. This might be overlooked, because just

as executives tend to underrate their secretaries, so do lawyers
tend to underrate the provision-by somebody else-of a good
filing system in the law. A good statutory filing system, moreover,
runs free of any prejudices of any staff of any publisher : the
framework is just there. Hence, even if this had been all, I find
myself blind to why any person should do other than be glad to
find the scattered patches of the older statutes made into a quilt
that we can use. And the value of testing each single piece of
law in any 'field' against the whole problem of movement of
goods, and of financing the production and movement, and
of payment and collection, has already been mentioned. Law that
has grown by fits and starts and often enough by accident does
need this kind of testing every fifty years.
But the Code does much more. The Code does not merely bring
to suppliers from all over the nation one Bulk Sales Law instead
of who-knows-how-many; it brings, in Article 6, the best which
long e~perience has suggested. The Code does not merely make
sure that a decision about transfer of a bill of lading will be in-
dexed so that persons interested in transfer of warehouse receipts
can find the decision-the Code also clears up doubts which have
proved troublesome and provides (as with realization in case of
mercantile storage) stream-lined procedures which do the job
better than the present law.
And the Code really covers the commercial field in a way in
which no present statute does. It is so queer to find no single
one of the Code's opponents mentioning this fact. Where the
present law is blank or else confused or else in conflict, the Code
moves in, with competence based on net experience, to provide one
single and very reasonable answer, which is so much more clear
than the existing law that if a counsellor or business man really
knew how unclear the existing law is in the case of pinch, he ought
to be hailing the Code, again, for this cause alone. For it is true
that even bad rules can be worked with (though unhappily) if
they are rules clear to everyone, and if they are rules known or
knowable to all. On rules clearly known, as Mr McCloy has
soundly testified, a soundly free-running American economy de-
pends. The Uniform Commercial Code provides such rules.
The present law does not provide the rules which Mr McCloy
calls for as being necessary.
 appendices 597

If you have any doubt, ask yourself or your client or your lawyer
any one of the following questions under the present law. They
are questions which any one can match by the hundred.
(a) You receive a 'check' 'payable through' another bank:
can you become a holder in due course?
(b) You invite bids, for the known purpose of preparing
your own bid, and you get a 'firm' sub-bid. Can you rely on
it?
(c) You have what you think to be all the necessary papers,
but the transfer agent wants more, and you are pressed for
time. Can you force registration of transfer?
This is the kind of unnoticed thing which the Code covers, in
one detail after another upon another, for the effective guidance of
any lawyer or businessman or financier. The existing law does not.
Indeed, when one settles down to saying how much more the
Uniform Commercial Code includes to guide the action of a com-
mercial lawyer or of a business man or banker, it is queerly in-
teresting how little of the huge new, rather clean, coverage fits
into any big chunks with names. Of course there is the whole,
freshly stated basic law of letters of credit, Article 5, approved,
on my first hand information, by the relevant bankers and legal
counsel of interested banking institutions in Boston, Chicago,
New York, Philadelphia and San Francisco. There is the bother-
some field of that 'open-term' type of sales contract which looks
more to continuing business relations than to the fixed shifting of
a market risk : a field covered by the Code in full accord with
business need and understanding, and so much welcomed by
lawyers such as the counsel for Bethlehem Steel. And there are
other 'big-blocks' such as 'foreign terms,' so welcome to men
like Wilbert Ward of the National City Bank of New York, and
to the leaders of our import and export trade. There is in par-
ticular the making clear and stream-lining of the whole law of
chattel security. There is also the very useful matter of simplify-
ing and giving teeth to the rights of persons who need transfer
of investment securities on the books.
And so on, throughout the Code. The opponents do not seem to
understand a balance-sheet.
Meantime there is, here in the Uniform Commercial Code the
heaping up, the bulking up, the towering up, in those hardly
countable, those hardly observable, filing details which the Code-
59 8 appendi ce s

without anybody mentioning or even suggesting any single detail

-proceeds to provide as seashells are provided on a seashore.
What do I do, in any pitch, if the bill or note is maybe not
'negotiable'? (About three hundred scattered and unfindable cases
handled clearly in one section.)
What do I do, in any pinch, when the draft carries a 'referee
in case of need'? (You find a case!)
What am I to do, in any pinch, with a check which comes in
among a hundred-or thousand--check batch, but is indorsed by
my correspondent's depositor "for acct," if I begin to worry
about my correspondent, which carries its account with me? (See
Soma v. Handrulis, 277 N.Y. 223 and see Memorandum by Pro-
fessor Mentschikoff on 'good faith and commercial standards' in
re Article 3·
Or : to shift to the more commercial end : If my delivery is
off by a hair, can he, in any pinch, reject it?
Or : If I am a buyer : You mean I should pay a ten percent
advance, and then when I reject good goods I get a lien, and then
I can keep them out from his re-inspection and resell them to
make evidence of deficiency, and then ... ?? You mean ... ?
Under the present law, such things raise doubts or dangers.
Under existing law, they are tough. Under existing law, they are
either wide open or plain trouble, each, and all, and many more.
The Uniform Commercial Code cuts down the doubts, and cuts
them down wisely, on literally hundreds of such things.
The friends of the Code have come to take that for granted.
They hardly mention it.
But what is rather surprising, if you examine the attacks made
on the Code before the New York Law Revision Commission, is
the quiet and queer assumption made by the attacks themselves:
(a) that the Code is full of such unmentioned values;
(b) that only detail remains to be attacked; and, finally,
(c) that only by trying to distract attention from the Code's
huge and pervading merits is there any hope of keeping it from
its mission of helping business and banking and the country.
In sum, the Code gathers into a form quick and easy to find,
and to understand, and to use :
(1) the full subject-matter of all the present Uniform Com-
mercial Acts, from the Negotiable Instruments Law through the
 appendices 599
Sales and Warehouse Receipts and Stock Transfer Acts on into
the Trust Receipts Act; and
(2) the full subject-matter of the related commercial acts: Bulk
Transfer, Bank Collection, Factors, Accounts Receivable, and the
like; and
(3) the judicial decisions which have come to overlie, obscure
or supplement any of these statutes; and
(4) whole areas •thus far left to scattered and often troubled
case-law-such as open-term contracts, letters of credit, docu-
mentary collections, non-negotiable bills and notes, transfer on
the books of stock and registered bonds, field warehouse rights,
foreign trade terms; and especially
(5) literally hundreds of detailed matters spotted through the
whole field of commercial law and finance which under our un-
happy existing law still mean doubt or trouble to counsel and to
operator.
And the solutions offered, in all of this, are wise solutions.

E. Because of the Nature of the Code Material

As compared with the existing law in New York or any other
state:
(1) What the Code says is relatively clear. The existing law is
doubtful or empty throughout almost the whole area discussed by
the Code's opponents.
(2) What the Code says fits with modem business and finance.
Where it changes existing law, the existing law will stand- if it
gets appealed to, as it does in bad times-in the way of sense, and
some honest operator will get stuck.
(3) What the Code says makes for fairness. Where it changes
existing law it is where the existing law, as so often, makes trouble
or sets traps for people who are acting in business good faith.
(4) What the Code says makes it relatively easy to set up
transactions with fairness and with safety. Under the existing
law this is a hard job, and unless a business or financing man
happens by accident to draw an ace of counsel as he cuts the legal
deck, the business man runs unnecessary risk or he incurs un-
necessary expense, or both.
(3) What the Code says leads to relative simplicity plus safety,
in action. No informed person can fairly claim any such thing
for the existing law of New York or of any other State.
In sum : The Code makes business and financing sense. The
60 0 appendi ce s

ex1stmg law makes neither, and is sought to be avoided by the

commercial community by drafting (never wholly trustworthy,
always expensive) and by arbitration (never wholly trustworthy, and
in times of real hardship, a bending reed to lean on).
How can any honest critic, seriously, and for the supposed
reading of intelligent persons, attack even a small portion of the
Code without making clear the unbelievably awful condition of
the existing commercial law which the Code so greatly improves?

F. The Code, although both large and new, is unbelievably easy

to use
Never in American history has any statute, much less a large
one such as the Code, been presented to bench, bar and public
in form so easy and so safe for any man to use.
Accompanying the Code statutory sections are comments-the
use of which is explicitly authorized by the Code itself-comments
which give useful indication of the purposes of the section, and
which do more : they cross-refer to almost everything else in the
Code which bears upon the section in hand; they give clear cross-
reference to the definition of any word of art whatever which
the section may contain. To this add a thing: the captions of the
sections have been worked over for years in order to make sure
that they contain catchwords which will index all of the substance
of any section.
If that were all, it would be enough to make use of this new
Code easier than use of any ordinary, short, and simple statute.
But that is not all.
The job of the lawyer is not only to find the law; the job of
the lawyer goes on into the using of the law.
The Uniform Commercial Code is a Code for use, not merely
for the decision of rows over transactions which have gone dead,
rows between one-time partners-in-enterprise who have become
fighting enemies.
The Uniform Commercial Code comes, as no statute has ever
come to these United States before, <furnished.' The American
Law Institute, and the Pennsylvania bankers, for example-with
other outfits in full swing to follow- have put out booklets which
show what to do under the Code, and how to do it.
You will have a hard time finding, anywhere, or at any price,
equivalent advice as to how to handle your commercial or com-
mercial financing transactions under the existing law of any State
 appendices 601

m these United States. You will indeed. But the Code and the
books which come with it make this whole branch of law right
here and now a branch for every lawyer's easy use.

G. Because the gains from the Code outweigh even uniformity

Suppose some other State, or thirty-seven other States, get
chased into non-adoption of the Uniform Commercial Code. It still
is worth adoption by any State large or small, 'commercial' or
'non-commercial.'
The proof of that has lain, now these ten years, in the law school
classroom.
Present the Code to your class, and because it makes rather
simple sense, they get it with three to four times the speed with
which they 'get' the 'ordinary' law of any of the subject matter.
With that background, they then proceed with equal speed to
'get' the ordinary law, in supplement and in comparison.
No lawyer in a Code State will ever have difficulty dealing
with, or indeed in outmanoeuvring, his intellectual equal from
an old-fashioned State. The Code State lawyer is-even in cross-
State transactions-on the inside, looking out. He can hit, in
quiet confidence, from an understanding which only about eighteen
present experts in these United States can match.
At home, meanwhile, he has simpler, more workable, and fairer
law.

Such is a preliminary case for the Uniform Commercial Code.

It is queer to watch the opponents chasing the m~rror techniques
around, each 'point' reflected from subcommittee w subcommittee
and back and back again until it seems almost as if $27.50 (a
doubtful charge to begin with) had become $2,75o,ooo.oo with
more to come. The assets side being, of course, always and still
unmentioned.
But the assets side is solid. It is vital. It is great. And, piece by
piece, inch by inch, section by section, it bears the scrutiny and
study of any honest man.
KARL N. LLEWELLYN,
August r6, 1954.
Appendix F
The Pueblo Codes

The documents that follow may be of particular interest to those

who are concerned with the recording, restatement or reform of
tribal law especially where it survives within a 'modern' legal system.
Llewellyn was invited to draft codes for three Pueblos : Zia, Santo
Domingo and Santana. As far as I have been able to ascertain only
one Pueblo, Santana, in fact formally adopted Llewellyn's draft
code and it is doubtful if it was ever fully operative. The first docu-
ment, which is addressed to 'White lawyers', throws some light on
Llewellyn's conception of what he was doing. The second document,
which is in the nature of a preamble or explanatory memorandum
is a good example of Llewellyn's style in addressing the Pueblos. The
exqerpts from the draft code for the Santanas are taken from the
General part and from the 'Bill of Rights'. The code contained less
than one hundred sections, divided into eight parts.

(i) INTRODUCTORY NOTE ON PUEBLO CODES, FOR

WHITE LA WYERS 1
A Pueblo Code is written against a background of effective, working
'Common Law' of the Pueblo. A written provision is not like/ a
statute which stands on its language alone (as does the act of a
legislature which is intended to change the common law rule); it is
more like the principle laid down in a well-reasoned leading
decision, to be applied or extended in terms of its underlying reason,
and the peop~ who feel and know that reason are the men of the
Pueblo Council.
Hence, when one puts down in English written rules for a Pueblo,
one has to forget a good deal of his American legal technique. There
are provisions in Sections 12 and 14, for instance, which on an
American book of statutes or ordinances might well be just dis-
 appendices 603

regarded as being merely 'directory'. But in a Pueblo each pro-

vision has teeth, given by the background. Disrespect to an officer
is an offense, a sort of contempt of office reminding one half of
contempt of court, half of 'disrespect' inside the military establish-
ment. But the insulted Pueblo officer does not punish by himself;
he needs his court to advise, and, in the event of hia personal
grievance getting in the way, to moderate. Again, if the Pueblo
officer fails to behave according to his office, the provision is not
'merely directory'. His staff will call him in for rebuke, and the
rebuke can bite. But it would not, in a Pueblo Code, be seemly to
set this down. Everybody knows that it can happen, how it is done,
and that it will be done. But set it down in written words, for
people of the Pueblo to contemplate, is as unseemly as to set down,
for the Supreme Court of a State or of these United States, the
manner in which proper judicial behavior is to be achieved, if some
judge should start getting out of hand.
It is against this background that a Pueblo Court's interpretation
of a Pueblo Code is to be read and understood. Reason and purpose
of a provision are vital; machinery for enforcement is present and
implicit; and the Pueblo common law supplements all provisions.
K. N. Llewellyn
(ii) DRAFT PREAMBLE FOR A CODE FOR THE
PUEBLO OF ZIA 2
It is well for our younger men to know our law. It is well for our older men
and our younger men to agree about our law. It is not good to wait until
trouble comes up before our law becomes clear to all. This is our law:
To hold membership and rights in this Pueblo, the member must do his
community duties. The duties are known to everyone. Everyone is re-
sponsible for doing them. When the Governor cries in the plaza that there is
spring ditch work three weeks or a month beforehand, or the War Captain
cries in the plaza that there is plastering of public buildings two days
beforehand, it is the duty of every one to know and report. We all know it is
coming. We have waited to hear. Ours is a little pueblo; in three minutes
any man can walk from any house to any other house.
In regard to the duties of peace, of not assaulting another member with
a stock or a hand or a word, we have been trained, all of us, since we could
talk. In regard to the duties of right conduct, of hard work, of respect to
the people and respect to our officers, we have been trained since we could
talk.
It is not the practice of our pueblo to put on any offender at any time the
full penalty which the law makes possible. But the power is there to do that,
60 4 appendi ce s

when the good of the pueblo makes it necessary. Nineteen times out of
twenty, the courts of this pueblo stay far inside the penalty which they have
the power' to order; half of the time the courts of this pueblo are content to
make an offender swear on his knees that he will give up bad things and be a
right member of the pueblo.
But when our courts fail to put the full penalty on an offender, or fail to
go after an offender, that does not mean under our customary law that the
offense is forgotten or washed out. It means that in the judgment of the
court, or of the officers of the year, that there was more hope for the man
and for the pueblo if things were made easy that time. Our officers know how
to go easy some times; our officers also know how to wait. This often helps
bring an offender to right ways.
These are all right parts of the customary law of our pueblo.
When a man just seems to forget his duties, it is the custom of this pueblo
to warn him and advise him; and if he is within reach, he may be warned
and advised several times, when he looks like a man who is likely to be
reformed.
But when a man refuses to perform his duties, that tells his intention for all
the future. It is then for the officers to decide whether to warn and advise
him, and how often to do that. The man knows his duty. To 'forget' too
often says 'I won't'.
It is the law and policy of this pueblo to recognize control and the right
of control by parents over children. This is a question not of age, but of
birth. Under our law children do not grow up to years in which they are
free, without consent of their living parents. A widow of sixty-five, on her
death bed, has still the power to say which of her thirty- or forty-year-old
sons shall be head of the family and family-trustee of family property.
The law and policy of this pueblo show how great is the reliance of this
pueblo on the right education of future members by the parents of the young.
It is the parents who are relied on to raise the young in right ways, in ways
of hard-working duty and clean living, in ways of quiet and peace with all
of our close-living neighbors, in ways of respect for our constituted officers
and institutions. It is a matter of shame if a child who has gotten into
trouble requires to be advised not by the parents alone, but by the officers
and the Council. Therefore, any conflict between the advice and com-
mands of parents and the ways of this pueblo and the commands of its
constituted officers, is a conflict which this pueblo cannot have. Such con-
flict cannot be permitted to continue.
Therefore, again, under the law and policy of this pueblo, if parents
either leave the pueblo voluntarily or are expelled, the children must lose
membership at the same time and by the same fact. Expulsion never happens
quickly. It is a last resort, for peace and good order. Membership, even by
birth, cannot continue when the relationship of birth itself produces a
conflict in duties which the pueblo cannot have within it.
 appendices 605

But if, when a member with children leaves or is expelled, that member
gives up parental rights over children, then the case is different. Such
rights can be surrendered to a responsible member of this pueblo in good
standing, if the children are young; or, if the child is old enough to have
judgment of his own, such rights can be surrendered by the parent to the
child, by consent of the parent.
A child born into this pueblo, but taken out by a parent, remains in the
eyes of the pueblo a child to be desired as a member, if that child ever
desires to be readmitted. A3 in any other case of new admission, the Council
must be careful.... It is not the policy of this pueblo to make children
suffer for the faults of their parents; but it is the policy to make sure that its
members have grown up with the respect and understanding for its officers
and its laws and ways which this close community requires for its work
together.

(iii) EXCERPTS FROM PUEBLO CODE OF LAW AND

ORDER FOR SANTANA PUEBL0 3
PART I. General Rules about this Cotk
( 1) The writing and intention control, so far as they go
(a) This Code is intended to put down in writing some things which
every officer and member of this Pueblo should know in regard to the
authority and duties of officers and the duties of members inside the Pueblo
and outside.
(b) This Code controls any case which falls within the language or
intention of any rule stated in the Code.
(2) This Code is not compute, and customary law is still inforce, and cases of the
same kind should be treated in the same way.
It is understood that this Code does not cover fully and completely all the
powers of the officers or all the duties of members or all the rights between
members or families of this Pueblo. Therefore,
(a) Unwritten customary law is still in force in this Pueblo except where
this Code or the Council has laid down a rule in writing.
(b) Unwritten customary law can be applied and interpreted by the
Council to fit any new cases or conditions as new cases or conditions may
arise.
(c) What has been done in any case is to be carefully considered in any
later case of the same kind, and it is justice to do the same thing in the later
case unless there is good reason for taking different action. Where different
action is taken, the good reason for taking different action should be made
clear.
(3) The Council has the final say, and interprets according to the spirit and purpos1
of any rule. In any case of doubt about the meaning of this Code or of an
unwritten customary rule it is for the Council, when duly called, to decide
60 6 appendi ce s

what rule applies and what the rule means in the case. The Council's duty
is to decide according to the fair spirit and purpose of the rule, according
to its heart. Written words are a guide and key to get at the heart.
(4) General purpose of Code. The general purpose of this Code is right and
peaceful life in this Pueblo, and good faith and fairness in all dealings by
officers and members of this Pueblo.

PART II. Powers, Rights and Duties of Officers

(I I)' An officer's duty is to the whole Pueblo. Any officer who has a power or
a right has a duty to the Pueblo to use his power or his right to help the
whole Pueblo. Any officer has a duty to work for the whole Pueblo and a
duty to put out of his mind his own interest and his own family or clan or
society or kiva or friends and any other thing which might make him forget
his duty to the whole Pueblo. The purpose of having officers is to have right
government, and for right government it is needed that officers shall work
only for the whole Pueblo. That is one reason why every officer is entitled
to respect from every member of the Pueblo. Soldiers and veterans must
respect the officers just as any other member of the Pueblo must.
(I 2) In.sulting or interfering with officers
(a) An officer of this Pueblo has a duty to be slow to take offense, even
if he is insulted. He must keep his dignity. The Pueblo is in his hands.
(b) The Governor or Lieutenant Governor, War Captain or Lt. War
Captain, Fiscale or Lt. Fiscale, Ditch-boss or Lt. Ditch-boss, if he is insulted
or interfered with in the exercise of his authority, has power to arrest the
person who has insulted or interfered with him and hold that person for
trial. The officer has a duty to have a trial within a reasonable time not more
than (five) days from the arrest.
(I 3) Purpose of Punishment; forgiveness of offense. In regard to any offense
against this Pueblo the duty of an officer is to correct the offender and to
tum him into a good and right member if he can. This is the purpose of all
punishment in this Pueblo. An officer or a court can forgive offenses that fall
within the power of that officer or court whenever forgiveness seems to the
officer to be the right way to help the offender become a good and decent
citizen. But where the wrong done is also a wrong to a person or family,
and damages are claimed, the damages can be forgiven only with consent of
the person who has been wronged.
( I4) &spect to officer. An officer in the exercise of his duty must always be
listened to and spoken to with respect.
(I5) Where an officer's power reaches inside the Pueblo. An officer's power in
the exercise of his office covers any member of this Pueblo in any place on
the reservation except a private house and covers a person in a private house
in case of emergency or in case the officer has been duly invited to enter to
exercise his authority. Once an officer has been invited into a house all his
authority comes with him.
 appendices 607

Note explaining Part IV, BiU of Rights

At the present time, it has become clear that the Pueblos have need for a
strong government which will stand up under any kind of attack in the
white courts.
The white courts have grown up in a tradition. No part of that tradition
is deeper or more deeply felt than the idea that no government is a right
and proper government unless there are some things which the government
cannot do. Every citizen must have some definite protection against his
government, if the government should ever stop being reasonable.
It is therefore important that a Pueblo Code should somewhere lay down,
clearly, some limits on the powen of the government, in protection of the
citizens.
Furthermore, the younger men ought to have some portion of the Code
which they can rightly feel is for them.
This Bill of Rights, if accepted, will be very persuasive to any white
court. It leaves full room for strong government. It ought to make the
younger men feel that they also have been thought about.

PART IV. BiU of Rights

(41) Reasonabkness, faitness and evmMss of rules. Any law of this Pueblo,
written or unwritten, is valid if it is reasonable and if it applies fairly and
evenly. Under this section
(a) the appointment of officen in the old way is reasonable, fair and even,
and any change in the method of appointing officen may take account of
the old way as being reasonable, fair and even; and
(b) what is reasonable is what is reasonable for this whole Pueblo in the
light of its history, its customs and its needs.
(42) Trials and pnuJties. Trials and penalties may follow the old and
tested way of this Pueblo, unless this Code or the Council changes some part
of that way. But
(a) trials must be fair and no man must be judged guilty because of spite
or without reasonable grounds; and
(b) penalties must be fair and even; and
(c) any fines go to the Pueblo. No fine can go to any officer or other single
person or group; and
(d) at any trial any party is entitled to know what the charge against him
is and to call any witnesses whom he may need and to be heard in his own
defense or to call a friend to speak in his defense. It is the duty of the officer
presiding at the trial to call careful attention of the defendant to all of these
rights; and
(e) A person is entitled to be satisfied with any serious judgment or
penalty against him if there is any reasonable way of making him satisfied.
If he remains unsatisfied even with a judgment by the Council, the Council
must hear his case once more. But no man is entitled to hold up the business
60 8 appendi ce s

of the Pueblo by remaining stubborn after two judgments of the Council

against him.
[Note: This is probably the most important section in the Code (along
with Section 45) to make a white court feel that the Pueblo way
of justice is a right and just way.]
(43) Sancti~ ofprivate house; searches. Except in case of real emergency an
officer must not without invitation enter a private house. Cases of real
emergency include
(a) protection against impending fire;
(b) danger to life and limb because of an active fight going on in the
house;
(c) reasonable suspicion that stolen goods are concealed in the house; and
(d) need to arrest a person accused of a serious offense and reasonably
thought to be in the house.
But an officer should be slow to judge any case to be one of emergency
if no invitation to enter has been given.
(44) Rights in land and to membership.
(a) All land even though in the possession and use of a particular person
or family remains subject to the underlying general ownership-rights of the
Pueblo. But land which is rightfully in the possession and also in the use of
any person or family must not be taken from the user while the user remains
a member of the Pueblo unless there is strong cause as judged by the
Council. Any offense which is strong enough to make it right to take back
land actually in the possession and use of the offender is strong enough to
make it right to exclude the user from the Pueblo.
(b) Persistent refusal without good reason to perform community duties
when properly ordered is sufficiently strong cause to justify exclusion from
the Pueblo and the taking back of land.
(c) Even if land is taken back as a part of excluding a person from the
Pueblo that person must be compensated for any improvements made on
the land by him or by the people who have had the land before him.
(d) A person who voluntarily gives up his membership in the Pueblo
gives up his rights to the use of land but retains a right to the value of im-
provements.
(e) Exclusion from the Pueblo for breach of communal duties requires
three formal demands for performance of the duty and three failures to
perform after such demand and two trials before the Council. The Agency
should be consulted before the second trial.
(45) Whipping and hanging up
(a) No more than three strokes of whipping can be given at any one time,
and no more than nine can be ordered for any offense. If there are to be
more strokes, two full days must pass before further strokes can be given.
(b) If the offense is a civil offense which is a serious danger to the peace
of the Pueblo (such as a beating up which results in serious injury); or if the
 appendices 609

offense is a serious civil offense which is willful and mean (such as serious
damage to another's crops, done for spite); or if the offense is a serious
offense against the civil government, and the offender remains stubborn
and refuses after all due effort by the Council to repent (as where he refuses
obedience to proper orders, insulting the civil officers in charge, and cannot
be brought to repent), whipping may be ordered for a first offense.
(c) Hanging up cannot be ordered or done in this Pueblo.
(46) Right ofpetition
(a) Any member of this Pueblo is entitled to a hearing before any proper
officer in regard to any grievance.
(b) Any members of this Pueblo are entitled to meet and discuss any
grievance at any time and to present to the Council their request for remedy.
Whether or not such a request is presented in writing, a spokesman is
entitled to be heard in person before the Council.

PART V. Duties of members

(51) General duties of members inside the Pueblo. Each member of this Pueblo
has a duty to keep the peace inside the Pueblo, to respect and aid all officers,
to use no abusive language to other members of the Pueblo and to support
the officers in the exercise of their authority.
(52) General duties of members outside the Pueblo. Each member of this Pueblo
has a duty when he is outside the Pueblo to so act as to uphold the good name
of the Pueblo.
(53) Community work. Each member of this Pueblo when duly called to
community work has a duty to perform it as directed. Community duties
are to be divided reasonably and evenly so far as possible. Private irrigation
and any other work which requires use of community resources must be
performed when assigned by the officer in charge.
[?(54) Community work by person living and working outside. If a member of
the Pueblo is living and working outside, the Governor may give him
permission not to return for any piece of community work. In such a case
the person who is not doing his community work must pay the Pueblo a
membership tax for the year of(? 5) dollars.?]
(55) Duty to hold office. A person appointed to office in this Pueblo may not
refuse the office.
1 K.L.P. I. II. 18. Undated (circa 1947).
2 Cited in D'Arcy MacNickle, TMy Came Here First 86-g (1949). Uewellyn was
probably the draftsman. The most likely date is 1947.
3 K.L.P. I. II. 23 (second draft, 1947).
4 Paras 5-10, if they ever existed, are missing from the original typescript.
SELECT BIBLIOGRAPHY OF WORKS
BY LLEWELLYN

(See Bibliographical Note, above p. xiv)

A. PUBLISHED WORKS
(Numbers in brackets refer to the Bibliography in Twining, The
Karl Llewellyn Papers)

Books
Beach Plums (poems), New York, London, Century (1931), 8 pp. (28)
The Bramble Bush, Tentative Printing for the Use of Students at
Columbia University School of Law, New York (1930), 100 pp.;
New York, Oceana (1951), 158 pp. (23)
Cases and Materials on the Law of Sales, Chicago, Callaghan (1930),
1o81 PP· (24)
The Cheyenne Way (with E. Adamson Hoebel), Norman, University
of Oklahoma Press (1941), 300 pp. (77)
The Common Law Tradition-Deciding Appeals, Boston, Toronto,
Little, Brown (1900), 565 pp. (115)
Jurisprudence: Realism in Theory and Practice, Chicago, University
of Chicago Press (1962), 531 pp. (117)
Priijudizienrecht und Rechtsprechung in Amerika, Leipzig, Theodor
Weicher (1933), 360 pp.; Sections 52-61 translated into English in
John Dawson (ed.), Comparative Law 187-200, Ann Arbor, Uni-
versity of Michigan Law School (1951). (39)
Put in His Thumb (poem8), New York, London, Century (1931),
119 PP· (3o)
[The Revised Uniform Sales Act, Second Draft-1941.]

Articles
Across Sales on Horseback, 52 Harvard Law Review 725-746 (1939);
reprinted by Harvard Law Review, with The First Struggle To Un-
horse Sales, as Horse-trade and Merchant's Market in Sales. (64)
61 2 bib liograp hy

The Adventures of Rollo, 2 University of Chicago Law School

Record, No. I, pp. 3-4, 2o-24 (I953). {I07)
The American Common Law Tradition and American Democracy,
I Journal of Legal and Political Sociology I4-45 {I942); Jurispru-
dence: Realism in Theory and Practice 282-3I5 {I962). (83)
The Bar Specializes-with What Results? I67 Annals of the Ameri-
can Academy of Political and Social Science I77-I92 (1933); 39
Commercial Law Journal 336-343 (1934). (36)
The Bar's Troubles, and Poultices-and Cures? 5 Law and Con-
temporary Problems 104-134 (1938); Jurisprudence: Realism in
Theory and Practice 243-28I (1962). (6o)
Behind the Law of Divorce (Part 1), 32 Columbia Law Review
1281-1308 (I932). (35)
Behind the Law of Divorce (Part 2), 33 Columbia Law Review
249-294 (1933)· (37)
Bringing Legal Aid to the Little Man, New York Times Magazine
7, 18 (March 25, 1934); 82 Pittsburgh Law Journal, No. 27, Io-15
(July 7, 1934). (41)
Carter, James Coolidge, 3 Encyclopedia of the Social Sciences 243-
244 (1931). (194)
Case Law, 3 Encyclopedia of the Social Sciences 249-25I (1931).
(195)
Case Method, 3 Encyclopedia of the Social Sciences 251-254 (1931).
(196)
Commercial Transactions, New York, Practicing Law Institute
(1946), 33 pp; revised version, The Modern Approach to Counseling
and Advocacy, Especially in Commercial Transactions, 46 Columbia
Law Review 167-195 (1946}; Jurisprudence: Realism in Theory and
Practice 323-351 (1962). (94)
The Conditions for and the Aims and Methods of Legal Research,
Handbook of the Association of American Law Schools 35-47
(1929); 6 American Law School Review 67o-678 (1930). (20)
The Constitution as an Institution, 34 Columbia Law Review 1-40
(1934); extracts reprinted as On the Nature of an Institution, Juris-
prudence: Realism in Theory and Practice 233-242 (1962). (42)
On the Current Recapture of the Grand Tradition, 9 University of
Chicago Law School Record, No. r, pp. 6, 16-23 (Fall, 196o);
Jurisprudence: Realism in Theory and Practice 215-229 (1962).
(u6)
 bibliography 613

The Effect of Legal Institutions upon Economics, 15 American Eco-

nomic Review 665-683 (1925). (16)
Fictions, Encyclopaedia Britannica (1964). (244)
The First Struggle To Unhorse Sales, 52 Harvard Law Review 874-
904 (1939); reprinted by Harvard Law Review, with Across Sales
on Horseback, as Horse-Trade and Merchant's Market in Sales. (65)
On the Good, the True and the Beautiful in Law, 9 University of
Chicago Law Review 224-265 (1942); Translated by Jose Brutan
into Spanish as Belleza y Estilo en el Derecho, Barcelona, Bosch
(1953), So pp.; Jurisprudence: Realism in Theory and Practice 167-
213 (1962). (84)
Impressions of the Cincinnati Conference on the Status of Stare
Decisis, 14 University of Cincinnati Law Review 343-355 (1940);
Jurisprudence: Realism in Theory and Practice 116-127 (1962).
(69)
Introduction, Jerome Hall, Theft, Law and Society xv-xxxv, Boston,
Little, Brown (1935}; reprinted as Theft as a Behavior Problem,
Jurisprudence: Realism in Theory and Practice 412-430 (1962). (49)
On Law and Our Commerce, 1949 Wisconsin Law Review 625-633.
(102}
Law and the Social Sciences, Especially Sociology, 62 Harvard Law
Review 1266-1305 (1949); 14 American Sociological Review 451-
462 (1949); translated by Enrique Vera Villalobos, El Derecho y las
Ciencas, Especialmente la Sociologia, Lecciones y Ensayos, No. 4/5,
pp. 29-44, University of Buenos Aires (1957); Jurisprudence: Real-
ism in Theory and Practice 352-371 (1962). (101)
Legal Tradition and Social Science Method-A Realist's Critique,
Essays on Research in the Social Sciences Sg-120, Washington,
Brookings Institution (1931), 194 pp. (29)
McDougal and Lasswell Plan for Legal Education, 43 Columbia Law
Review 476-485 (1943). (87)
Meet Negotiable Instruments, 44 Columbia Law Review 299-329
( 1944)· (88)
Memoranda (presented to New York State Law Revision Commis-
sion Hearings on the Uniform Commercial Code), Report of the Law
Revision Commission 21-34, 6g, 106-126, 193-195, 284, 553-554,
William Press, Albany (1954). (239)
My Philosophy of Law, A Kocourek (ed.), My Philosophy of Law
181-197, Boston, Boston Law Books Co. (1941). (78)
61 4 bib liograp hy

The Normative, the Legal and the Law-Jobs, 49 Yale Law Journal
1355-1400 {1940). {71)
The Place of Skills in Legal Education {report of Committee on
Curriculum, drafted by Llewellyn), Handbook of the Association
of American Law Schools 159-201 (1944); 45 Columbia Law Re-
view 345-391 (1945). (Sg)
On Philosophy of American Law, 82 University of Pennsylvania
Law Review 205-212 (1934). (45)
On the Problem of Teaching "Private" Law, 54 Harvard Law Re-
view 772-810 (1941). (8o)
On Reading and Using the Newer Jurisprudence, 40 Columbia Law
Review 581-614 (1940); 26 American Bar Association Journal 30o-
307, 418-425 (1940); Jurisprudence: Realism in Theory and Prac-
tice 128-165 (1962). (72)
A Realistic Jurisprudence-The Next Step, 30 Columbia Law Review
431-465 (1930); Jurisprudence: Realism in Theory and Practice 3-
41 (1962). (27)
Remarks on the Sacco-Vanzetti Case, Broadcast delivered at
WPCH, Saturday, August 20, 1927; The Karl Llewellyn Papers,
Twining, University of Chicago Law School, 105-110 (1968).
Remarks on the Theory of Appellate Decision and the Rules or
Canons about How Statutes Are To Be Construed, 3 Vanderbilt Law
Review 395-405 (1950). (105)
The Rule of Law in Our Case Law of Contract, 47 Yale Law Journal
1243-1271 (1938). (63)
The Sacco-V anzetti Case (part of an unpublished study), Jerome
Michael and Herbert Wechsler (eds.), Criminal Law and Its Ad-
ministration 1085-1091, Chicago, Foundation (1940); Louis Joughin
and Edmund Morgan, The Legacy of Sacco and Vanzetti 178-183,
New York, Harcourt, Brace (1948); reprinted as Who Are These
Accused? Jurisprudence: Realism in Theory and Practice 431-438
{1962). (75)
Social Significance in Legal Problems, A Conard (ed.), Conference
on Aims and Methods of Legal Research 8-21, 27, 28-31, Ann
Arbor, University of Michigan Law School (1955). (no)
Some Realism about Realism, 44 Harvard Law Review 1222-1264
(1931); Jurisprudence: Realism in Theory and Practice 42-76
(1962). (31)
Through Title to Contract and Beyond, 3 Law-a Century of Prog-
 bibliography 615

ress So (I937); amended version I5 New York University Law Re-

view I59-209 (Ig38). (57)
On Warranty of Quality and Society (Part I), 36 Columbia Law
Review 6gg-744 (Ig36); reprinted by Columbia Law Review, with
Part 2, as Courts, Quality of Goods, and a Credit Economy. (53)
On Warranty of Quality and Society (Part 2), 37 Columbia Law
Review 34I-409 (I937); reprinted by Columbia Law Review, with
Part I, as Courts, Quality of Goods, and a Credit Economy. (59)
Wesley Newcomb Hohfeld-Teacher (comment), 28 Yale Law Jour-
nal 795-798 {Igig); Jurisprudence: Realism in Theory and Practice,
49I-494 (I962). (g)
On What Is Wrong with So-Called Legal Education, 35 Columbia
Law Review 65I-678 (1935). (5I)
On What Makes Legal Research Worthwhile? 8 Journal of Legal
Education 39~42I (I956). (xn)
What Price Contract-an Essay in Perspective, 40 Yale Law Journal
704-751 {I93I). (32)

Reviews
Cairns, Huntington, Law and the Social Sciences, 36 Columbia Law
Review 505-507 (I936). (I59)
Campbell, Morton, Cases on Mortgages of Real Property, 40 Har-
vard Law Review I42-146 (I926). (I39)
Frank, Jerome, Law and the Modern Mind, 31 Columbia Law Re-
view 82-go (193I); Jurisprudence: Realism in Theory and Practice
IOI-IIO (Ig62). (I48)
Gisnet, Morris, A Lawyer Tells the Truth, 31 Columbia Law Re-
view I2I5-I220 (193I). (I50)
Michael, Jerome, and Adler, Mortimer, Crime, Law and Social Sci-
ence, 34 Columbia Law Review 277-29I (I934). (I57)
"The Modern Business Law Book," review of William Britton and
Ralph Bauer, Cases on Business Law,· Harold Perrin and Hugh
Babb, Commercial Law Cases,· Lincoln Schaub and Nathan Isaacs,
The Law in Business Problems; William Spencer, Law and Business,
32 Yale Law Journal 299-307 (I923). (I26)
Pound, Roscoe, Jurisprudence, 28 University of Chicago Law Re-
view I74-I82 (I96o); Jurisprudence: Realism in Theory and Prac-
tice 495-504 (I962). (182)
Robinson, Edward, Law and the Lawyers, and Arnold, Thurman,
61 6 bib liograp hy

Symbols of Government, 5 Brooklyn Law Review !U9-223 (I936).

(I6I)
Weber, Max, Law in Economy and Society (edited with an Intro-
duction and Annotations by Max Rheinstein), 24 University of Chi-
cago Law Review 6I6--623 (I957); German version in 2 Zeitschrift
fiir A.usHindisches und Intemationales Privatrecht, 22 Jahrgang I957,
Heft 4, pp. 72o-72I. (I8o)
Williston, Samuel, Some Modern Tendencies in the Law, I6 Ameri-
can Bar Association Journal 8Q9-8Io (I930). (I46)

BIBLIOGRAPHY OF THE PUBLISHED WORKS OF DIOGENES

JONATHAN SWIFT TEUFELSDROCKH
Jurisprudence, The Crown of Civilization, 5 University of Chicago
Law Review I71-I83 (1938). (245)
The Universal Solvent of Jurisprudence, 8 Harvard Law Revue 1-2
(1940). (246)

B. UNPUBLISHED MANUSCRIPTS
'Behind the Law of Divorce' III (I933+).
'The Chicago Jury Project' (I955).
'The Common Law Tradition' (1941)
'Drama, Dramatics and Kids'.
'Elements of Law' (duplicated teaching materials) K.L.P. Section
M.
'John Dewey and Our Law' (1949)
'Law and Language' (Symposium-Law and Humanities) (1961).
'Law and Social Science' (193o-35).
'Law in Crisis' (194o-1)
'Law in Our Society' (duplicated teaching materials) Ist Edition
1950, subsequent editions to 1958. K.L.P. Section L.
'Law in the Family' (193-)
'Legal Argument' (duplicated teaching materials) K.L.P. Section N.
'Loom of the Law: A Theory of Jural Sociology and Method'
(1935-40).
'The Low "Philosophy" of Law' (I943)·
'Mechanisms of Group Control' (1932-4?).
Memoranda and other MSS. on Pueblos K.L.P. Section I.
Memoranda and papers on U.C.C. K.L.P. Section J.
The [New] Bramble Bush (1947-51).
 bibliography 617

'A Nonconformist Puzzles over Education' (I924).

'The Parental Pole of Law and Government' (I96o-2?).
'Paris'.
'Position re Religion' (I943)·
'Recht, Rechtsleben, und Gesellschaft' (I932).
'On Robinson's Unscientific Science of Law' (I935).
'Sacco and Vanzetti v. The Commonwealth: An Indictment of the
Workings of Our ]udical Institutions (Started I928-abandoned
I935 ?).
'Sales Law and Marketing I8oo-I935' (I937+).
The Theory of Rules (I938-4o?).
Transcripts of Lectures K.L.P. Section C.
'Trends in Legal Sociology' (I933-8?).
Unpublished Verse K.L.P. Section B. VI.
Weber, Max 'Sociology of Law' (translations) (I935 and later).
'What a Private Thinks About the War'.
'What's What in Jurisprudence' (including 'Babel Versus Team-
work : Jurisprudence Since I goo') (I 942-3).
General Index

Adams,John, I26 Aquinas, St. Thomas, I24, 422

Adler, Mortimer, 58, Igo-I, 402, 5I7 Arnold, Thurman, 25, 58, 67-8, 82,
Crime, Law and Social Science, I 9 I 409,517
advocates, advocacy, 257-64, 354, 355 The Folklore of Capitalism, 67, 82
aesthetics, see legal aesthetics The Symbols of Government, 67
African customary law, I63-4, 431-3 Association of American Law Schools
agency, 33I (AALS), 6, 36, I I I-I2, I24, 273,
Allen, C. K., 6g 277, 350, 356
American Bankers Association, 287 committee on curriculum, 354
American Bankers Institute, IOI Association of American Railroads, 287
American Bar Association (ABA), 6, Association of the Bar of the City of
272, 277. 287, 327, 35I-2 New York, 280, 293
Canons of Ethics, 26I-2 Atiyah, P. S.,
Committee on Legal Service Bureaus, Accidents, Compensation and the Law, 384
350 Atkin, Lord, 2I4, 235-6, 239, 253-4
Survey of the Legal Profession, 35 I Austin, John, 22, 29, 35, 392, 397
American Civil Liberties Union
(ACLU), I 10, I24, 344 Baldwin, Simeon, 32-3, 94
American Indians, I 1I-I2, 125, I26; bank deposits and collections, 325, 330
see also Cheyenne Indians; Com- bar surveys, 349-50, 351, 367, 472
anche Indians; Pueblo Indians Barton, R. F., 16o
American Law Institute, 6, I5, 23-4, Beale, joseph, 7, 14, I5, 38--g, 72, I72,
272-4, 28<>-2, 286, 291, 299· 300, 389,406
302-3,3I7,3I9,459>530,533>544 Beard, Charles, 8--g, 174
Council, 285 beauty in law, see legal aesthetics
American Philosophical Society, 113 Becht, A., 215, 237-8,444
American Warehousemen's Association, Becker, Theodore L.,
287, 46I Political Behavioralism and Modem
Ames,J. B., 389 Jurisprudence, 445
analysis of concepts, analytical behavioural sciences, see social sciences
jurisprudence,34-6,97, I36-7, behaviourist psychology, 43, 63-4, I90,
I77,366, 397,469;seealso 378,380
classification; narrow issue Behrman, S. N., 344
thinking Benedict, Ruth
Anderson, Maxwell, Winterset, 344 Patterns of Culture, 356, 433
'and-not', 5I5-I6 Bentham, Jeremy, 8, I 70, 308, 352, 378,
Angell, Robert, I94, I95 385-7
anthropology, case method used in, 156, Berle, Adolf A., 56, 58, 410
I6o-4, I66-7,367,433 The Modem Corporation and Private
appellate advocates, see advocates Property, 58
62 0 genera l i nde x

Berman, H., 475 cases

Beutel, Frederick K., 292,429, 46I, 462 analysis and interpretation of, 132-5,
Bienenfeld, F. R., I85-6 2324},25o-7,452
Bingham,J., 73, 76-7, 366 discretion, 243-5
Bloomsbury Group, 26, 73 facts, 226-7 233-4
Boas, Franz, I 54• I66, 422 judicial opinions, 234-7
Bogert, George, 15, 280 techniques, 237-9
Bohannan, Paul, 163 appellate, 249, 254-5, 268-g
Boston University School of Law, I7 see also law reports
Bradway, John, 350 Cavers, David, 354-5
Brandeis, L. D., 174 Centennial History of the Harvard Law
Brandeis brief, 213 Sclwol, 391
Braucher, R., 458,470 'certainty', see predictability
Breitel, Charles, 252, 5I9 Chalmers, M. D., 277, 289
Brophy, William A., 357-a, 474 Chandler, Walter, 277-a
Broun,Heywood,344 channelling of conduct, see law-jobs
Buckmaster, Lord, 254 theory
bulk transfer laws, 328-g Chase National Bank, 290, 293
Bunn, Charles, 271, 46o Cheatham, Elliott, 56, 371
Bureau of Indian Affairs, 357, 474 Cheyenne Indians, I22, 15g-Qg, 251,
Burlingham, C. C., 126
434
business management, 61 Chicago Arbitration Project, 181, 476
Butler, Nicholas Murray, 45, 46, 52, I03 Chicago jury Project, 193
buyer's protection, see consumer c.i.f. contract, 197-a, 525
protection Clark, Charles E., 63, 65, 67, 68, 73, 76,
195· 217, 266, 350,456
classification, 23-4, 43-4, 46, 47-9,
Cahn, Edmond, I85-6 135-7,218,222-3,334-5
The Sense of Injustice, I85, 2I5
Cleveland Crime Survey 1919,502
Cairns, Huntington, I66, I go code, meanings of, 307-a; see also
Law and the Social Sciences, I88-I93 Uniform Commercial Code
candour in judicial processes, 227-9, 253 Cohen, Felix, 409
canons of ethics, 261-2, 351-2 Cohen, julius, 256
Caplowitz, D., Columbia Law School, Ch. 3
The Poor Pay More, 292 casebooks, 56-7, 131, 383
Cardozo, Benjamin N., 72, 174, 248, and Cook, 37
249· 255. 422 curriculum discussions 1926-a,
and Grand Style, 2IO, 2I4, 264, 26g 4&-51, 53, sa, So, 103-4, 106, 128,
and situation sense, 2I9, 222 135· 194. 408
Carlin, Jerome, 351, 457 deanship crisis, 51-5, 103-4
Carlyle, Thomas, I!IO early development, 41-2
On Heroes and Hero-Worship, 120 and realist movement, 9, 23, 25, 26,
Sartor Resartus, I 20, I 95, 42 I 4o, Ch. s. 55-9,n. 410
Carter,J. C., 21, 108, so8, 310,392 in the Thirties, 56--9
The Ideal and the Actual in Law, 310 Columbia University Social Science
casebooks, I4-15, sfr-7, 128-40, 367, Research Council, 35 7
384 Comanche Indians, 154-5, 159
case law, 33, 231-50, 49I commercial law, 10o-2, 104-5. 133-4,
case method 277-a,s37.46s-6,s3&-7
in anthropological study, 155· xs6, s1e also Sale of Goods Act 1893;
16o-4, 166-7,367,369,433 Uniform Commercial Acts;
in legal education, 5, 1o-12, 13, 20, Uniform Commercial Code
27-a. 33· 41, 57· 146, 354· 391 Commission on the Rights, Liberties
 general index 621
and Responsibilities of the Amer- Crafts, Theory of, 182, 199-200, 202,
ican Indian, 112 229, 505-12, 521; see also law-crafts
'commissioners' notes', 326-7 crisis of confidence, ::105-7, 245, 254,
Committee on Interstate and Foreign 256, 268-g
Commerce, 277 Crosskey, W. W.,
common law, 13 Politics and the Constitution, 4 76
case law and cases, see main entries Currie, Brainerd, 47, 49, 50, 59, 66,
introduction to US, 4-6 132, 403
problems of adaptation, 4-6, 8
unification and simplification of, 5, Davis, John W., 275
6-7,15,272-7,281,288,303-6 Deak, Francis, 58
and Uniform Commercial Code, decision-making, judicial, Ch. 10, 248,
311-12 381, 4o8-g, 4 26
common sense, see horse sense definition of Law, see Law, definition of
conflict of laws, theory of, 38-g, 416 Democratic State Committee, 110
consumer protection, 133-4, 292, 307 Dession, G., 410
contract law, 136, 338-40 Dewey, Governor Thomas E., 293
Cook, Walter Wheeler, 37-40, 397-9, Dewey, John, 8-g, 38, 40, 56, 88, 106,
405 174. 344· 371,422-3
at Columbia, 40,41-2, 45 Dickinson, John, s8o-l
and empirical research, 38-40, 51, dispute prevention, see law-jobs theory
54·381-2 dispute settlement, 156-8, 18o-1, 199,
and Hohfeld, 35-6, 39-40, 416 232, 364-5; see also law-jobs theory
at Johns Hopkins, 52-3, 6o 'divisive urges', 175, 180
and legalscience, 12, 37-8,40,45, 399 divorce, Llewellyn's study of, 194-5
and Llewellyn, 98, 104, 106, 131, 132, Donoghue v Stevenson, 214, 234-6, 239,
188, 191 253-4.451
TM Logical and Legal Bases of the Dos Passos, John
Coriflict of Laws, 61, 378, 416 TM Big Money, 344
and Pound, 393 Douglas, William 0., 46, 53, 54, 58, 62,'
and realist movement, 26, 27, 40, 76, 67-8, 76, 82, 376
82,377.378,40!) Dowling, Noel T., 45, 56, 58
'Scientific Method and the Law', Dunham, Allison, 271,284,316, 46o
378,398-g Dwight, Theodore, 41
at Yale, 34, 37, 45, 94• 95, 377 Dworkin, R., 381, 3gB, 448
Cooley, T.
Torts, 28 Edgerton,John, 100
Corbin, Arthur Linton, 27-34, 395-6, Ehrlich,Eugen, 107, 1o8, 129,312
397 Einstein, Albert, 344
and Hohfeld, 34-6, 39 elegantia, 15, 197-8, 213, 443
'The Law and the Judges', 3o-1, 94, empirical research, see research
96, 1o6, 224, 396 Encyclopaedia of Social Sciences, 176, 232,
and Llewellyn, 94-6, 103, 132, 28o, 310
338, 415, 422 equity, 46, 48, 49
and realist movement, Ch. 2, 82, 315, Exner, Franz, 107
366,s76-7,s78,s84,405
'Sixty-Eight Years at Law', 30, 395 facts, statement of, 32, 233-4, 26o, 262,
teaching method of, 29-30, 33 514-15; see also situation sense
his theory of law, so-s fact-scepticism, 379, 408-g; see also
and Uniform Commercial Code, Frank, Jerome
285,28g,339 Falk Foundation, 281, 299
Corstvet, Emma, 110, 155,474 Fallers, L., 433
counsellors, 258-9, 492-3, 494-5 'Customary Law in the New African
Cowen, Judge, 210, 248, 264, 510 States', 432
62 2 genera l i nde x

Farrell, James T., S44 Cases and Materials on the Development

Federal Commercial Code, Proposed, of Legal Institutions, 57
299 Golden Rule, 211,322
Federal Sales Act, Proposed, 111, Goldschmidt, Levin, 2I7, 223-4, 226,
277-8,280,285,527 447
Field, David D., soB Universal History of Commercial Law,
'fireside equities', 215-16, 226, 26o 224
folkways, 92-s Goodhart, A. L., 2S4
formalism, revolt against, 8--9, 10, 22, Goodrich, lierbert, 284
ss-6, Ios, I72, s66, s76, 406 Grand Style of appellate judging, I6g,
Formal Style, 210, 2II-15, 216, 228, I98, 201-2, 2IQ-I5, 216, 217, 222,
2S1,24S,25o-6,269,S81 223, 227, 237. 24S. 247. 25o-7,
rules-of-thumb, 448, 49S-4 s69, sBI, 445
Francis,]., 76 and advocacy, 26o, 262
Frank, Jerome, S2, 58, 167, 405-6, 501 and predictability, 206-7, 2SI, 245,
Courts on Trial, S79 252,254-7
fact-scepticism of, 408--9 renaissance of, 206, 245, 25I-2,
and formalism, 10, 406 256-7' 268--9, sSs, 455
Law and the Modem Mind, 7I-2, 207, rules, 495
S79· 405, 409 and Uniform Commercial Code, Sl2,
and legal education, sss, s67, 5I5 S40
and realist movement, 26, 7S• 75-7, Gray, John Chipman, 7, 14-5, 2o-2,
82, S76, S78--9. s81, 405-6, 409, SO, I08, S9I-2
50I, 5I7-I8 The Nature and Sources of Law, 2I, S92
Frankfurter, Felix, 24, s8, I 74· S44· and realist movement, 24, 376, 392,
S9S· 456 4o8
Franklin, Benjamin, 121, 174 The Rule against Perpetuities, 20
Freirechtslehre, 1 o8 Select Cases and Other Authorities in the
Frederick II, the Great, so8 Law of Property, 2o-I
French Commercial Code, Sl I Green, L., 76, 82,409
Freud, Sigmund, 25, 88, 106, 185 'group', I8G-2, 4S9-40
Freund, Ernst, s89, 4I5 Gulliver, P.li., 159
Freyer,lians, I07
Friedrich, C.,
The Philosophy of Law in Historical liagen, Else, 4I3
Perspective, 41 I liale, Robert Lee, 56, 4Io
Fuchs, Ernst, 1o8 liall,Jerome, 195, 4u, 499
Fuchs, Ralph, S55 liamilton, Walton, 67, 9S, I76-7
Fuller, Governor Alvin T., S42, S44-5 liand,Judge Learned, I74, 2IO, 469
Fuller, L., 380 liandler, Milton, 56, 58, 427
'functional' concepts, 49, Iss, 406 lianna,John,s6,s8,4IO
functions of Law, see law-jobs theory liardin, Charles, 285
liarper, William R., s89
liart, li. L.A., I79, 255, S79
Galsworthy,John, 344 The Concept of Law, 390, 438
Garrison, Lloyd, sso Harvard Law Review, 72, 7S, 77, 287
Gellhorn, Walter, 56 liarvard Law School, 7, 9, Ch. I, 72,
Geny, Franc;:ois, 187 77, 38g-g4,4o6
Gerard, james W., 4Bo, 486 Llewellyn visiting professor at, 1I 2,
German Civil Code, 197, S09 286
Gilmore, Grant, 27I, 284, 292, 297, Heydon's case, rule in, 322
SI6, SI8, 46o, 462 liines,JamesJ., II0,419
Gluckman, Max, I6S, I66, S35• 4SI History of the Class of Nineteen-Fifteen,
Goebel, Julius, 56 9o-I,486
 general index 623

Hoebel, E. Adamson, uo, 111, 125, 'institution', 176-7

154~. 163, 164~. 167, 195· 433 insurance, 330
TM Cheyennes, Indians of 1M Great International Institute for the
Plains, 156 Unification of Law, 107-8
TM Law of Primitive Man, 178 interpretation of authoritative sources,
Pueblo project, 356-7, 358--g, 474-5 231-45. 32!)-30
Hohfeld, Wesley Newcomb, 29, 34-7, discretion, 243-5
39· 274· 3g6-7 liberal, 322-3, 324
and Cook, 40,416 techniques, 237-9, 241-3
Fundamental Legal Conceptions, 36, 94, see also cases; statutes
378 Isay, Hermann, 108
and Llewellyn, 95, 97-8, 137
and realist movement, 26, 35~, 82, Jacobs, Albert, 58, 194, 410
366, 385, 405 Jervey, Huger W., 46, 52
'Some Fundamental Conceptions as Jessup, Philip C., 56
Applied in Judicial Reasoning', 34 Johns Hopkins University Institute for
theory of conflict oflaws, 416 the Study of Law, 37, 40, 52-3,
'A Vital School ofJurisprudence and 104,403-4
Law', 36, 94• 378,459 closure, 62, 65
at Yale, 27, 94, 377 programme, 6o-r
Holland, T. E., 29,35 publications, 61--2,403-4
Holmes, Oliver Wendell, Jr., 8, ro, Johnstone, Q.,
15--20, 21, 22, 24, 30, 40, 88, roB, l..au!Jers and TMir Work, 351
174,365, 371, 410,422 Joint Tortfeasors and Property Act, 281
his 'bad man' concept, 17-18, 310, Jones,
390o493 Mortgages, 28
'can't-helps', 185, 514 J oughin, Louis
on Langdell, 15, 389-91 TM Legacy of Sacco and Yanzetti, 347,
and legal education, Ig--20, 50, 353, 471
366, 381 judges
'The Path of the Law', 16-17, 18, 19, appellate, Chapter 10
31, 207, 427 position of, 30, 32-3
and Pound, 393 and rules of law, 494-5
prediction theory of, 18, 129-30, 390 jural postulates, 164-6, 433
and realist movement, 15-16, 72, 'jurid', 179. 439
376-7,379o382,385,410 jurisprudence, 3, 54, 172-4, 370,
Honnold, J., 329 37g-81, 384-7, 435-8, 497-505,
Hopson, D., 521; see also Llewellyn, approach
l..au!Jers and TMir Work, 351 to jurisprudence and legal theory;
horse sense, 173, 191, 220, 502-3 realism; Royal Tennis Tradition;
Hough, Judge, 264 'theory'
House of Lords, 238--g juristic method, 164, r6g, 175, 182, 184,
Howe, Mark de Wolfe, 266, 390 199, 229, 52o-1; see also Crafts,
Hughes, G. B.J., 476, 521--2 Theory of; law-jobs and law-crafts
Hurst, Willard, 384 'justice', 125, 157-8, 185-7, rg8,
Hutcheson,J. C., 76,409,517-18 215~. 252-3, 261, 441, 515~·
Hutchins, Robert M., 52, 62-3, 68, 82, See also fireside equities, Natural
410 Law
Hyde, Charles C., 56 justification (in judicial reasoning), see
reason and judicial reasoning
'ideal types', 15~, 178, rBo, 438;
see also jural postulates Kahn-Freund, Otto, 396
'immanent law', 31, 217, 223~, 449 Kantorowicz, Hermann, 107
industrial relations, 46 Karl Llewellyn Papers, xiv, 425
62 4 genera l i nde x

Keener, William A., 4I, I38 law and logic, 15-16, 17, 23, 227-31;
Keller, A. G., 92, I53, 4I4 see also reason and judicial
Kelsen, H., 499-500 reasoning
Kelso, Charles D., 356 law-making, procedures for, 314-15;
Kennedy, John, 58 see also Uniform Commercial Acts;
Kennedy, W. B., g8o Uniform Commercial Code
Kent, James, 32, 4I, 2IO, 396 law and morality, 17, 27, go-1, 395
Kessler, Friedrich, 46o law reports, 246-50
Contracts: Cases and Materials, 476 comparative analysis of, 264--6
Keynes, J. Maynard, 26 sampling of, 24 7-8
Klaus, S., 76 law schools, 6, 9
'Knickerbocker Democrats', IIO, 4I9 ethos of, 143-4
Kocourek, A., 8g objectives of, 353
Kohler, J., I 59 teaching methods of, 13-I4, 141-2,
Konenkov, Sergei, 422, 447 146, 355
Kripke, H., 292, 463 s11 also University of Chicago;
Kurland, Philip B., 266 Columbia; Harvard; legal
education; Yale
labour law, 46 'Law, Science and Policy' (LSP),
Lachmund, Hans, go, 9I, I07, 4I3, 486 gSs--6, 410
father of, 89 Law Society, 352
Lancaster, William W., IOI-lt law-stuff, 179, 439
Langdell, Christopher Columbus, I7, law-wavers, 179, 439
I8, 29, 97, I72, 376, g8I law-ways, 157, I79, 439
his case method, ID-I2, Ig, 20, lawyer reference programmes, 352;
27-8, go, 33, 4I, Igi, 246, 354 see also legal aid
and educational reform, I4, Ig8-g, Lazarus, lsidor, 350
353. g66 Leary, Fairfax, 284, 316, 46o
and formalism, Io, 406 leeways, 206, 231-45, 262, 268-g
law theory of, II-I4, 22, 24-5, 33, 'Legal', the, 179, 438
I33. I97-8, 338 legal aesthetics, 100, 122, 156-7, 167,
A Sekction of Cases on the Law of 2ll, 213, 434· 443
Contracts, II, IS, I37. 389 theory of, 197-9
Laski, Harold, 2I, 393 legal aid, legal service bureaus, 110,
Lasswell, Harold, 49, 82, I70, 2I8, 353, 35o-2, 367
37I, 382, 384--6, 387 legal argument, 199, 258, 26o, 453-5
'Law, Science and Policy', 385--6, ethics of, 261-2
4IO legal doubt, 253-4
Legal Education for Publu Policy, 40I legal drafting, 354, 355
law legal education, ID-14, 28-30, 5D-I,
definition of, I6-I7, 2I, I48-5o, 137-9. 141-5, 146-7, 200, 353--6,
I??-9.429,437-9 368, 383, 390, 392
unification and simplification of, legal philosophy, 172-4, 436, 501,
see common law 51!)-20, 522-3
law-crafts, 96-7, I76, I99o 229, 504, legal profession, 349-53, 367-8;
SOS-I2, 52I see also bar surveys
definition of, sos--6 legal realism, see realism in law
spokesmanship, SID-II 'legal right', 34-5, 97, 146, 381, 493
stability and change in, So8-IO legal science, ll-13, 37-8, 40, 42-5, 51,
teaching of, 26o-64, 355--6, 367 54-5, 6o-1, 66-7, 172, 188-93,
law-government, I75, I7g-8o, I8g; 195--6, 198, 314-16, 318-19, g66,
see also law-jobs theory 442, 466, 492, 501-3
'law-jobs' theory, IS6, I68-g, 175-84, 'legal skills', see law-crafts
201, 202, g68, 437· 440 legal technology, see juristic method
 general index 625

legal theory, see jurisprudence and criticism of Uniform Commercial

Legniti v Mechoni&s and M11als National Code, 296-8
Bank, 221~ and empirical research, 58, 155,
letters of credit, 291, 325, 33o-1, 463, I93-s. 315-I6, 358
466 and Germany, 8g--go, 91, 413,
Levi, Edward, I 12-3, 447 47s-84
Lrn-Strauss, Claude, 166, 431, 440 and Hohfeld, 35, 97-8
Lewis, William Draper, 281, 284, 312, his ideas on codification, 308-I !I;
see also Uniform Commercial Code:
4-Go Keynote Memorandum
Linton, Ralph, 154
and legal education, 137-9, I4I-5,
Lippmann, Walter, 344
353-6
Litchfield Law School, 6, 388 and legal profession, 349-53
Literal Rule, 213, 322 and legal science, I88-g6, 315
Llewellyn, Janet, n&: George, 87-8 his liberalism, I25-6, 424
Llewellyn, Karl Nickerson: birth, 87; list of realists by, 73-7, 409-IO
parents, 87-8; childhood and his literary and musical tastes, I 2 I, 422
adolescence, ~; schooling in his nonconformism, 88, 93, I23, 4I5
Schwerin, 8g-go; at Yale College, and Oliphant, 46, 103-4
go-t, 92, ,.St; in Paris, 91; in his personality, I 13-I5, 456--7
German army, 91, 47g-81; return as poet and artist, 1I 7-23, 370
to US, 481-2; at Yale Law School, on polemical jurisprudence, 37g-8o
94-9; graduation, 99; first and Pound, 23, 24, 4-I, 71, 72-3, 394
teaching experience, I oo; banking and promotional aspect of Code,
experience, 101--2; assistant 302-3
professor at Yale, I 02 ; first his prose style, 119-2I, 42o-1, 4B5 ·
marriage, 102; move to Columbia and realist movement, 77-81,
Law School, 102; at Leipzig, 12g-go, 140, 315, 376, 38o, 382-4,
106-8, I to; first divorce, Iog, 194; 387, 4-Q!I, 405> 4o8-10, 517--23
second marriage, no; activities in his religious beliefs, I 23-4, 423-4
public affairs, I to; second divorce, on Sacco and Vanzetti case, 342-3,
II2j third marriage, II2j visiting 344-9
professor at Harvard, n2, 286; on social and political issues, I24-5,
move to Chicago, I I 2; death, I 111, 4I8-I9
!lg8 his study of Pueblo Indians, I II-I2,
antidoctrinaire tendencies of, 125, I25, I94. 286, 356-65
1119,1198 Sumner's influence on, 92-3
aphorisms of, II 6 as teacher, II5-I7, 131, 141-7, 152,
his approach to jurisprudence and 195· 354
legal theory, 54, 104-6, 172-4, and Williston, 2~
417-18, 435-8 Llewellyn, William Henry, 87
assessment of, 366--71 Llewellyn Papers, see Karl Llewellyn
attitude to Scientists, 63-5, IO!J-4, Papers
130, 188, 191, 196 Lorenzen, Ernest, 73, 76
at boys' camp, 88, 412-I3 Loughran, J., 249
case-law orientation of, 32-3, IGo-!1, Lowell Committee, 342, 345-6, 347
2g8, 305, 3I6--I7, 356 Lowie, R. H., I56, 166, 431
and commercial law, 100--2, I04-5, Luther, Willard, 285
277-8, 316, 337; see also Uniform
Commercial Code
and contract law, 338-40 McDougal, Myres S., 49, 82, 353, 376,
and Cook, g8, 104 382, 384-6
and Corbin, 94-7, I03, 1311, 28o, 'Law, Science and Policy', 410
338, 415 Legal Education for Public Policy, 401
62 6 genera l i nde x

MacNeil, I., 252 NAACP, I IO, 124

McNickle, D'Arcy, g6o 'narrow issue' thinking, 44, 97, I37,
McPherson v Buick, 214, 219, 221 33 I-g, 400, 469
Maitland, F. W., 164, 168 National Canners' Association, 287
Malcolm, Walter, 295, 332, 333 National City Bank, IOI, Ig8, gi6
Malinowski, B., 16o, 161, 166, 167 National Commission on Law
Argonauts of the Westnn Pacific, 430 Observance and Enforcement, 72
Crime and Custom in Savage Society, National Conference of Commissioners
153-4.430 on Uniform State Laws (NCC), 6,
Mansfield, Lord, 210, 225, 24fl, 264, I04, 272-4, 278--82, 2gi, !lg6, !lgg,
go6-7, 510 goo, 302, 3I7, 319-20, g66, 458,
Markby, W., 29, 35 530,532-3
Marshall, Chief Justice John, 210, 510 Commercial Acts Section, 278, !183,
Marshall, Leon C., 47, 49, 53, 54, 6o, 285,534
61, 104 Executive Committee on scope and
Medina, H., 56 program, 524
Mentschikoff, Soia, 112, 122, I6g Property Acts Section, !183, 285, 534
and Pueblo project, 358 uniform consumer protection
her work on Uniform Commercial legislation, !19!1
Code, 271, 281, 283-5, 286, 294, Natural Law, I23, 125, 187-8, 2I8,
goo-I, 316, 328, 46o g8o, 44I
Merchant of Venice, 215, 446 negligence, law of, 2 I 4
'merchants', 324-6 negotiable instruments law, see Uniform
Merchants' Association of New York, Commercial Acts: Uniform
277, 285 Negotiable Instruments Law
Mermin, S., 252 neighbourhood law offices, 352
Michael, Jerome, 56, I87, IgG-1, 402, neighbour principle, 1136
4IO, 517, 52I Nelles, Walter, 4IO
Crime, lAw and Social Science, 58, I9I 'neutral principles', 381, 456
Mill, John Stuart, New Deal, 57-8, 59, 68, I!15-6
Inductive Logic, 3 I New York Insurance Law Revision,
mischief rule, 211, 2I2, 2I3, 322 3!14
Mitteis, H., I07 New York Law Revision Commission,
Mooney, Eugene F., 339 !lgo,2gg-8,go1,307,3!14,463,466
Moore, William Underhill, 42-4,400 Llewellyn's statement to, 1194, 36g,
at Columbia, 42-4, 46 53G-45
his ideas on classification, 43 New York Legal Aid Society, 350
and legal science, I2, 45,54-5, 381-2 New York State Bar Association, !193
and Llewellyn, 103-4, Igi, I88, 191 New York Stock Exchange, 318
his parking studies, 63-5, 378, 408 normative ambiguity, I5g-6I, !14!1, 255
and realist movement, 26, 76, 82, Nussbaum, A., I07, I08
378, 405, 5I8
at Yale, 53, 62, 68
mores, go-1, 92-3, 325, 395 Oliphant, Herman, 42, 44-54, 397
Morgan, Edmund, 346--7, 409 Cases on Trade Regulation, 4 7
The Legacy of Sa&co and Vant:etti, 347 and classification of law, 47-8
Morison, Samuel Eliot, 344 in Columbia deanship erisis, 511-3
Morris, E. P., 92, 4I4 and Cook, 44-5
'mortgage', I29 experimental courses at Columbia,
Moskowitz, D., 409, 429-30, 496 45-6
Sotn4 Aspects of American Legal Realism, at Johns Hopkins, 6o-2, 65
409 and Llewellyn, 103-4, 131, 188
'movement of goods', 33o-1 and Moore, 43
Musaus, Heinrich, 8g and Pound, 24
 general index 627

and realist movement, 26, 76, 82, predictability, prediction theory,

378, 405, 409 17-19, 2o6-1o, 231, 232, 245, 252,
'A Return to Stare decisis', 44 254-5. 258-9, 288, 304, 336, 381,
role in Columbia curriculum 4o8
discussions, 4 7-5 I Princeton University, 25
Summary of Studiu in Legal Edl#atilm, 'Prior Uniform Statutory Provisions',
so-1, 53, 132, 135, 401, 403 328
Olivecrona, Karl, 38o, 522 Proaedings of the .A.mlri&an Law Institute,
275
Prosser, William L., 271, 46o
Page, W. M., 95 Prudents,54-s.s6-g, 377,402
'Panel Discussion on the Uniform Pueblo Indians, I I 1-12, 125, 194, 286,
Commercial Code', 463 356-65,433-4.474
'parental' model of law-government, comparison with Soviet model,
363-5· 476 36o-3, 475
Pareto, V., 513 codes, 35g--6o, 546-53
Parker, Dorothy, 344 Bill of Rights, 551--3
Pasley, Robert, 297 general rules, 549-50
'patent reason', su reason officen, 550
Patterson, Edwin W., 56, 58, 76, 307, federal jurisdiction, 358, 474
324,422
'ProbleiDS of Codification of
Commercial Law', 293 Rabel, Ernst, Io8, 312-13, 465
Pearson, Herron, 277 racial discrimination, 124-5
'period style', Ig8, 204, 205, 210, 251, Radin, M., 76,409
509 ratio decidendi, 234, 236, 450, 451;
Piaget, Jean, 185 see also cases, analysis and
Pollock, Sir F., 384, 38g interpretation
Post, A. H., 159 Rattray, R. s., I6o
'Poverty Law', 367, 386 realism in law, 7o-1, 74-81, 188, 255,
Pound, Roscoe, 251, 371, 393-4 409, 518-23; see also realist
'The Call for a Realist movement
Jurisprudence', 72-3 realist movement, 7-9, 23, 26-7, 7o-83,
deanship at Harvard, 22-3 366,377-9,40g-10
'Law in Books and Law in Action', achievement and significance of,
22, 129 375-87, 405. 408-9. 476
'The Limits of Effective Legal and Uewellyn, su Uewellyn
Action', 22 split and aftermath, 54, 67-g, So,
and Uewellyn, 7 I, 72--3, I 66 82, 104,377
'Mechanical Jurisprudence', 22 topics of, 377, 408-9
'The Need for a Sociological realists, list of, 73-7, 409-10
Jurisprudence', 22 'reason' and judicial reasoning, !ZIG-I I,
Phytogeography of Nebraska, 393 216-17, 227-31• 321-2, 426,
and realist movement, 24, 72-3, 75, 449-50,494
77-81, 382, 385, 517 'reasonableness', 335-6, 36o
and sociological jurisprudence, 29, reckonability, su predictability
44• 50, Io8, 366, 377 Redfield, R., 166, 431, 434
'Survey of Social Interests', 22 Reichsgericht, 107
Powell, Richard, 58 Report of the Commission on Obsceni!Y and
Powell, Thomas Reed, 24, 25, 76-7 Pornography, 466
precedent, doctrine of, Chapter 10 research, empirical and scientific,
precedents, 7, 253,276 38-40, 51, 54, sS-g, 62, 63, 103,
precedent techniques, 211, 212, 214, 134-5, 188, Igo-I, 193-5, 313--21,
237-9. 243· 244> 261-2 38o--2, 383
62 8 genera l i nde x

as basis for law-making, 313-15, Sacco-Vanzetti National League, no,

318-20 346
for Uniform Commercial Code, Sale of Goods Act 1893, 277, 287, 384
316-17, glg-20 Salmond, J., 29, 35, 392, 410
&statement of African Law, 159, 431 Torts, 384
&statement of Coriflicts of Laws, 38 Salsedo, 343
&statement of Contracts, 35, 338, 339 Sanford, Elizabeth, 102
&statement of Law project, 23, 274-6, Savigny, Friedrich K. von, go8, 310,
28o-1, 302, 304, 459, 525 392,515
Revised Uniform Sales Act, su Uniform Scandinavian realism, 522; see also
Commercial Acts Olivecrona, Karl
Rheinstein, Max, 3, 15, 388 Schlesinger, Rudolf B., 305, 330
Riddell, Justice, 346-7 'Probleins of Codification of
right, see legal right Commercial Law', 293, 463-4
Robinson, Edward, 67 Schnader, William A., 271, 278-81,
Law and the l.au{yers, 82 284, 290, 295, 296, 2g8-g, goo,
Robinson,J. H., 8, 174 302, 400, 463
Robinson, Schubert, Glendon
Ekmentary Law, 28 'The Future of Public Law', 452
Rodell, Fred, 68, 409, 410, 517 Schwartz, Louis B., 400
Woe unto 1'ou, Lawyers, 82 scientific model of law, see legal science
Rogers, Henry Wade, 94, 95, 98, Scientists, 54-5, 6o-7, 130, 188, 377,
416-17 402 ; see also legal science
Rohan, P., 221-2 secured transactions, 295, go6, 325,
Rolland, Romain, 344 330, 333-5, 418; see also Uniform
Roman Catholicism, 124 Commercial Code, Article 9
Roman Law, 17, 99, 251 Sedition, Llewellyn and law of, 110,
Rome Institute for Unification of
Private Law, 277, 312 419
'servant', 137
Roose, Kirk, 466-7 Sharp, Malcolm P.,
Roosevelt, Franklin D., 57-8 Contracts: Cases and Materials, 476
Root, Elihu, 273 Shearman and Sterling, 101
Rosenstock-Heussy, Eugen, 475 Shoshone Indians, 155
Royal Commission on Trade Unions
and Employers' Associations, 396 Simon, Rita James
Royal Tennis Tradition, 173, 370, 523 The Sociology of Law, 455
Rules, Theory of, 182, 2oo-2, .f.88-96 Sinclair, Upton
rules oflaw, 145-6, 148-50, 200, 381, Boston, 344
Sinzheimer, Hugo, 447, 449
395-6, 437-8, 488-96 'Sittlichkeit', go, 395
in American State appellate courts,
'situation sense', 211, 213, 216-27, 237,
496
functions and place of, 491-3 248,250,253,262,369,448"'9,490
tribal, 15g-6o, 164-6, 432 definition of, 21g-2o
'rule-scepticism', 32, 255, 408 'immanent law', 223-6
Rumble, W. interpretation of, 217-19, 221-3
American Legal Realism, 409, 411 summary, 226-7
Rutledge, Judge Wiley B., 264 'skelegal', 179, 439
Rutter, Irvin C., 355-6 Skilton, R:, 330
Smith, Emmet F., 290, 293, 461
Smith, Reginald Heber
Sacco, Nicola, 341--3 Justice and the Poor, 350
Sacco and Vanzetti case, 88, 110, 341-9 Smith, Young B., 46-7, 52, 55, 103,
Llewellyn's broadcast on behalf of, 104, 194· 280
369 Columbia reports, 56, 58-9' 131
 general index 629

social sciences, 45, 55, 63-4, 113, 'title', 136, 287, 288-g, 3o6, 331--3, 427
188-g6, 366, 377. 381, 387, 455; torts, 46, 13 7
su also research; sociological trial courts, su divorce study; Sacco
jurisprudence and Vanzetti case
sociological jurisprudence, 22-4, 29, tribunaux de commerce, 31 1
44 , 48--5 •, 107, 108, 111-12, 170, Trobriand Islanders, 153, 430
366, 377. 383, 385 'trouble case', see case method in
'Sociology of Law-Government, The', anthropological study; dispute
171 settlement; law-jobs theory
Soviet law, project on, 361-3 Trubeck, David, 218, 266, 456
Spencker, Liese!, 413 truth, theory of, 513-16
Stanford University, 34 Tulin, L. A., 76
staTe decisis, 44, 2o8; see also precedent, Tweed, Harrison, 284
doctrine of
state appellate courts, 245, 248--50,
251,256-7 Underhill Moore, see Moore
Statute of Frauds, 384 Uniform Commercial Acts, 302, 304-5,
statutes, 231, 234 524""9· 532, 536
and cases, 23g-41, 491 Uniform Act on Contribution among
interpretation of, 241-5 Tortfeasors, 273
su also Uniform Commercial Acts; Uniform Bills of Lading Act, 325, 533
Uniform Commercial Code Uniform Chattel Mortgage Act, 104,
'steadying factors', 2o6, 207-10, 230, 529
252; su also predictability Uniform Law on International Sale of
Stone, Harlan Fiske, 4o--1, 45, 46, 52, Goods, 277, 312
53 Uniform Negotiable Instruments Law,
Stone, Julius, 234 too, 273, 500, 524-5, 527, 529,
Story, Joseph, 7, 38-g 533· 539
student revolt, 366 Uniform Revised Sales Act, 111,
Sturges, Wesley, 67-8, 76 278-81, go6, 312-13
style, see Formal Style; Grand Style; committee, 28o--1
period style First Draft and Report, 27g-8o
Summers, Robert S., 467 Second Draft, 28o
Sumner, William Graham, go, 88, Uniform Sales Act, 273, 277-8, 280,
92-~, 105, 153. 177, 395. 412, 414 287""9. 312, 325, 327, 525, 533
Folkways, 92-3 Uniform Stock Transfer Act, 273, 533
Supreme Court of Massachusetts, 17, Uniform Trust Receipts Act, 104, 105,
342,344 273· 526, 529, 533
Sutherland, Arthur E., Uniform Warehouse Receipts Act, 273,
The Law at Harvard, 393 500,533
Swan, Thomas, 34, 285, 289, 396 Uniform Commercial Code, 35, 97,
Taft, William Howard, 34, 95, g8-g, to8-g, 111-13, 125, 126, 127, 171,
417 194, 27o--340, 367-8, 383-4· 408,
Tappan, Paul, 195 502
Tarello, G., 388, 409 advisory committees, 285
Teufelsdrokh, Diogenes Jonathan amendments, 299, 463-4
Swift, 120, tgg, 421 categories and scope of, 33o--7, 528
Thayer, Judge Webster, 7, 14, 341-2, comments, 326-go, 526-7, 544
349 and common law, 311-12, 33g-4o
'theory', 512-14 consultation, 286-7, 534
Thomas, Dorothy, 63 and contract law, 33g-40
Thomas, Hiram, 277-8, 285 criticism of, 287-92, 321, 46o--1, 535
Thurber, James, 344 definitions, stipulative, 336-7
Timasheff, N. S., 166 documentary sources of, 458
63 0 genera l i nde x

Editorial Board, 282-5, 294, 2g6, 299 Veblen, Thorstein, 8--9, 88

empirical basis of, 313-21, 466--7 Vietnam war, 366
first complete draft, 1!85~. 534~ Virginia Law RellUw, 277
flexible standards of, 335-7 Void, Lawrence, 425~
'good faith', 307, 312 Yolksgeist, 224, 392, 515
interpretation of, 322-3, 327-8, 468 Volstead Act, 516
Keynote memorandum, 524-9
letters of credit (Article 5), 291, 325, Wall Strut Journal, The, 122
33<>-I, <f-63, <f-66, 541 'warranty', 133-4, 136, 139, 324-5
literature about, 270 Waterman, Judge Sterry, 285
Llewellyn as Chief Reporter, 281~, Watson, J., 43
294, go<>-I, 46<>-2 Weber, Max, 107, 108, 153, 180, 183,
Llewellyn's preliminary work on, 353.418
27g-82, goo Wechsler, Herbert, 56, 300, 381, 456
Llewellyn's statement, 294, 369, Weiss, Bill, 350
53<>-45 Wells, H. G., 344
New York Law Revision Commission Wetter, J. Gillis, 251, 455
study, 293-8, 301 · The Styks of Appellate Judicial OpiniMis,
objectives and policies, 303-7, 323 265
Official Texts, 2g6, 299 White, Morton G., 8
Permanent Editorial Board, 299-300, Social Tlwught in Amlrica: 1M Revolt
305 against Formalism, 8, 388
planning and preliminaries of, Wiener,
278-85 Effictil!4 Appellate Advocacy, 263
preparation of, Ch. 11 Wigmore,J. H., ·15
promotional aspect of, 2g8, 302-g, Williston, Samuel, 7, 14, 15, 277, 327,
466 338, 384, 397
reasons for, 524~, 536-9 and formalism, 406
reporters, 281-5, 46o, 4-611 The Law of Contracts, 39, 133, 136
Review Committee, 300 'The Law of Sales in the Proposed
Sales Article (Art. 2), 139, 287, 289, Uniform Commercial Code',
295· 312, 325, 328 287-90· 46<>-1
secured transactions (Art. g), 286, Wisconsin University, 42
295,299-3oo,go6,325,333-5,538 wisdom, 3<>-1, 215, 217, 222, 224-5,
statements .of purpose, 323-7, 464, 229, 446-7. 450, 455. 501
465 Wright, Lord, 197-8
supplement No. 1 (1g55), 294
terminology and style of, 2g6-8, 'Yale casebooks', 137
304-5· 300, 328, 335· 4fil, 526 Yale College, g<>-1, 92, g4, 414
'The Treaty', 282-5, 300, 31g Tall Dai/y News, go, 481
unconscionability provisions, 291> Tale Law Journal, 27, 34-5, 95, g6, 97,
307, 312, <f.6g-70 99
United Pueblos Agency, 357, 474 Yale Law School, Chapter 2, 377
University of Chicago, 37, 42 Institute of Human Relations, 63,
University of Chicago Law School, 44, 67-8
112, 425 Llewellyn at, 94-103, 416
University of Chicago School of and realist movement, g, 23, 25, 26,
Business, 49 67-9. 77. 410
US Constitution, 4 ra~~ &~JUw, 30
US Supreme Court, 5, 456 'Yale system', 27-8, 94, gg6
Yntema, Hessel, 46, 53, 54, 6o, 76, 103,
V anzetti, Bartolomeo, 341, 343, 348--9 IO<f.,<f-09
BOOKS IN THE SERIES (continued from page iii)
de Sousa Santos: Toward a New Legal Common Sense
Diduck: Law’s Families
Fortin: Children’s Rights and the Developing Law
Glover-Thomas: Reconstructing Mental Health Law and Policy
Gobert & Punch: Rethinking Corporate Crime
Goldman: Globalisation and the Western Legal Tradition: Recurring Patterns of
Law and Authority
Harlow & Rawlings: Law and Administration
Harris: An Introduction to Law
Harris, Campbell, & Halson: Remedies in Contract and Tort
Harvey: Seeking Asylum in the UK: Problems and Prospects
Hervey & McHale: Health Law and the European Union
Holder & Lee: Environmental Protection, Law and Policy
Jackson & Summers: The Internationalisation of Criminal Evidence: Beyond the
Common Law and Civil Law Traditions
Kostakopoulou: The Future Governance of Citizenship
Lewis: Choice and the Legal Order: Rising above Politics
Likosky: Law, Infrastructure and Human Rights
Likosky: Transnational Legal Processes
Maughan & Webb: Lawyering Skills and the Legal Process
McGlynn: Families and the European Union: Law, Politics and Pluralism
Moffat: Trusts Law: Text and Materials
Monti: EC Competition Law
Morgan & Yeung: An Introduction to Law and Regulation: Text and Materials
Norrie: Crime, Reason and History
O’Dair: Legal Ethics
Oliver: Common Values and the Public–Private Divide
Oliver & Drewry: The Law and Parliament
Picciotto: International Business Taxation
Probert: The Changing Legal Regulation of Cohabitation: From Fornicators to
Family, 1600–2010
Reed: Internet Law: Text and Materials
Richardson: Law, Process and Custody
Roberts & Palmer: Dispute Processes: ADR and the Primary Forms of
Decision-Making
Rowbottom: Democracy Distorted: Wealth, Influence and Democratic Politics
Scott & Black: Cranston’s Consumers and the Law
Seneviratne: Ombudsmen: Public Services and Administrative Justice
Stapleton: Product Liability
Stewart: Gender, Law and Justice in a Global Market
Tamanaha: Law as a Means to an End: Threat to the Rule of Law
Turpin & Tomkins: British Government and the Constitution: Text and
Materials
Twining: General Jurisprudence: Understanding Law from a Global Perspective
Twining: Globalisation and Legal Theory
Twining: Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na’im,
Yash Ghai and Upendra Baxi
Twining: Rethinking Evidence
Twining & Miers: How to Do Things with Rules
Ward: A Critical Introduction to European Law
Ward: Law, Text, Terror
Ward: Shakespeare and Legal Imagination
Wells & Quick: Lacey, Wells and Quick: Reconstructing Criminal Law
Zander: Cases and Materials on the English Legal System
Zander: The Law-Making Process