Rediscovering Williston

Washington and Lee Law Review, Winter 2005 by Movsesian, Mark L

Abstract

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues 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 ofpragmatism 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 commonly supposed. Even the undertheorized quality of Williston's scholarship-to contemporary readers, the least appealing aspect of his work-makes a certain amount of sense, given his goals and intended audience.

I. Introduction

For more than a hundred years now, we have been encountering Samuel Williston.1 Architect of the fundamental concepts of classical contract law, author of a monumental treatise,2 Reporter on the first Restatement of Contracts:3 Williston's impact on American jurisprudence has been enormous and enduring. In his day, he was by far the most famous American law professor, regarded both inside and outside the academy as our preeminent legal scholar.4 Even many Progressives and Realists who devoted their careers to debunking Williston's careful doctrinal system treated him with affection and respect.5 Arthur Corbin referred to Williston as his "older brother" in the law.6 Karl Llewellyn dedicated a book to Williston as "the maker and builder of our law of Sales."7 When he died in 1963 at the age of 101, Time magazine took notice, honoring Williston in an obituary entitled A Yankee Socrates.8

And his memory lingers on. More than fifty years after his last article and more than eighty years after his most important work, Williston's name still appears on lists of the most widely-cited legal scholars.9 His doctrinal system remains the basis of our everyday law of contract; his insights provide the starting point for contemporary academic treatments of central theoretical issues: the bargain requirement,10 interpretation and the parol evidence rule,11 and party autonomy.12 Williston's views on the objective theory of contract are a staple of the first-year curriculum.13 One can safely say that every American lawyer has read, or at least heard, something about him.

Yet, paradoxically, for the last few decades the academic literature has not taken Williston's jurisprudence all that seriously. The cite count is high, but scholars have tended to look to Williston only in passing, referencing him when they have needed a source for some black-letter proposition or some point of legal history. In part, this indifference stems from the fact that most of Williston's work is of a doctrinal and case-oriented style that has fallen out of vogue.14 In large part, though, the academy's unwillingness to engage Williston has reflected the portrait of him left by later Realists like Grant Gilmore,15 whose The Death of Contract famously depicts Williston as a reductive and dreary scribe.16 Over time, the conventional wisdom has lumped Williston together with the great villains of contemporary jurisprudence, the classical formalists, portraying him as a mindless reactionary obsessed with logic and conceptual abstraction.17 Even the much-touted "new formalism" of the 1990s tended to keep its distance from Williston, contrasting its empirical justifications with the essentialism of the classical model.18

In the last couple of years, however, scholars have begun to show a new respect for Williston's jurisprudence. Some of these scholars reject Gilmore's characterization and argue that elements of Williston's jurisprudence are both practical and sophisticated. For example, in an article in the Yale Law Journal, Alan Schwartz and Robert Scott attempt to restore a "Willistonian" approach to the interpretation of certain contracts between firms.19 In the absence of externalities, they argue, Willistonian formalism best suits the profit maximizing goals of commercial parties; as a result, his approach can serve as the foundation for a new "law merchant for our time."20 Similarly, Todd Rakoff argues that Williston's work on contract interpretation "contains writing of considerable subtlety" that should "be treated as a legitimate part of the modern conversation."21 Some scholars actually embrace the conceptualism with which critics have charged Williston. For example, Peter Benson recently has set out to complete what he perceives to be Williston's central projectpresenting a coherent, autonomous account of contract law that relies solely on the unifying principles implicit in legal doctrine.22

What accounts for this renewed interest in Williston's jurisprudence? Part of the explanation lies in the cyclical nature of legal scholarship.23 American contract law tends to fluctuate between formalist and nonformalist periods, and we live in something of a formalist moment.24 In contrast to the scholarship of a generation or two ago, today's cutting-edge work in contracts values brightline rules, objective interpretation, and freedom of contract. These were central themes of classical formalism as well, and it is only natural that, whatever their initial misgivings, today's new formalists should seek to learn more about the views of their academic ancestors.