Cross Purposes & Unintended Consequences - Karl Llewellyn, Legal Realism and the Limits of Social Transformation
Danielle Kie Hart
Southwestern Law School
February 15, 2011
Nevada Law Journal, Vol. 12, 2012
Despite attempts to reform the law to eliminate hierarchies that subordinate groups of people, the law usually ends up reinstantiating those hierarchies. This “preservation through transformation” phenomenon occurs consistently, over time and across legal disciplines. Karl Llewellyn’s efforts at drafting Article 2 of the Uniform Commercial Code are no different. Llewellyn attempted a paradigm shift in contract formation when he sought to decouple contract law from its formalistic roots and bring it back in touch with reality on the ground. But in so doing, the law-in-action strand of Legal Realism ended up working at cross purposes with the other, critical strand of Realism. As a result, Llewellyn’s paradigm shift only served to exacerbate structural problems built into the contract law system. This Essay attempts to explain why Llewellyn’s efforts to reform contract law have had such serious, long-term but unintended consequences for the modern contract law system. It does so in an unorthodox way. Instead of drawing from traditional contract-law scholarship, the Essay imports insights from two seemingly unrelated fields - civil rights law and social philosophy. The Essay’s central thesis is that revising existing doctrine will rarely if ever result in meaningful change in the modern contract law system. In fact, doctrinal reform will almost always be counter-productive, as reforms from within will only rebuild power, advancing and further protecting the interests of the privileged. Understanding and revealing this trap is essential to finding a path forward to lasting change. Contrary to traditional contract-law critiques, meaningful reform will only occur by understanding power - who has it, why they have it, and how they keep it.
Number of Pages in PDF File: 24
Keywords: Legal theory, contract theory, social theory, legal history, civil rights, hierarchy, domination, race, gender, class
JEL Classification: I30, K12working papers series
Date posted: April 29, 2011 ; Last revised: August 7, 2014
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