Rediscovering Williston

Abstract

This is an intellectual history of classical contracts scholar Samuel Williston. I argue that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than we commonly suppose. Even the undertheorized quality of Williston's scholarship - to modern readers, the least appealing aspect of his work - makes a certain amount of sense, given his goals and intended audience.

Keywords: Classical Legal Theory, Contracts, Formalism, Jurisprudence, Legal History, Williston

JEL Classification: K00, K10, K12, K19