1 - Karl Llewellyn and the Origins of Contract Theory

Summary

Introduction

Karl Llewellyn was America's leading legal realist, academic law reformer, and contract law theorist. There are extensive analyses of Llewellyn's performance as a realist and reformer, but his contracts scholarship, written between 1925 and 1940, has not been seriously analyzed. As an example, William Twining's famous study answered the question of what of Llewellyn should be read today as follows: “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.” But Twining did not analyze any of these articles in detail in a 533-page book. Similarly, a recent major collection of readings on legal realism has a single chapter on contracts that is twenty-one pages long and has only a two-page excerpt from one Llewellyn contracts article – (3) – that does not set out his views on any contract issue. Modern scholars commonly infer Llewellyn's views on contract theory from early drafts of the Uniform Commercial Code, from the Code itself, or from Llewellyn's later jurisprudential writings.

The attention that modern scholars pay to Llewellyn and a citation analysis of his work confirm that Llewellyn's contract theory has current relevance. This chapter evaluates the theory through an analysis of the contracts articles themselves. Turning to the sources sometimes is unnecessary for a figure who is as well known as Llewellyn, but is necessary here because the usual references are not illuminating.