Cross Purposes and Unintended Consequences: Karl Llewellyn, Article 2 and the Limits of Social Transformation

Abstract

Despite attempts to reform the law to eliminate hierarchies that subordinate groups of people, the law usually ends up re-instantiating 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. 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 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.