Llewellyn, Karl Nickerson

views updated

LLEWELLYN, KARL NICKERSON

Karl N. Llewellyn was a distinguished legal scholar and professor, and a leading proponent of legal realism, a philosophy that is critical of the theory that the law operates only as a system of objective rules.

Llewellyn was born May 22, 1893, in West Seattle, Washington. His father was of Welsh ancestry and his mother's ancestors had come to the New World on the Mayflower. Llewellyn spent much of his youth in Brooklyn, where his family had moved during the first year of his life. Unhappy and unchallenged academically by high school in the United States, he entered the Real-gymnasium in Mecklenburg, Germany, where he boarded with relatives of a family friend. During his three years in Germany, Llewellyn became fluent in German and demonstrated talent in mathematics and science. He left Mecklenburg in the spring of 1911, and briefly attended the University of Lausanne, in Switzerland, before returning to the United States.

In September 1911, Llewellyn entered Yale, where he compiled an outstanding academic record and excelled at athletics, especially boxing. In the spring of 1914, he entered the Sorbonne, in Paris, to study Latin, law, and French. He was still a student there when world war i broke out. Although he never officially enlisted, he fought with the Seventy-eighth Prussian Infantry on the western front, earning the Iron Cross for his service. He was wounded in battle in November 1914 and spent nearly three months in a military hospital.

Llewellyn returned to the United States and to school in 1915. During his second stint at Yale, he took his coursework even more seriously and began considering a career in teaching. He studied under William Graham Sumner, the author of Folkways (1906), an acclaimed work concerning social practices and beliefs and the influence of both on society and individual behavior. The ideas and theories found in Sumner's work would significantly affect the development of Llewellyn's view of the law as a social institution that is greatly influenced by the surrounding culture.

Later in 1915, Llewellyn entered Yale Law School. He served as editor in chief of the Yale Law Journal for three years and wrote many of its articles himself. In 1918, he graduated at the top of his class. He remained for two years as a part-time instructor in the law school, filling in for an ailing professor. Llewellyn mostly taught courses in commercial law, which later would become his specialty. In September 1920, thinking that practical experience was important before settling into an academic career, he took a position in the legal department of the National City Bank in New York City. Soon after he was hired, the bank dissolved its legal department and transferred its legal business to the Wall Street law firm of Shearman and Sterling. Llewellyn was also transferred, and subsequently worked almost exclusively on the bank's legal affairs. Although he enjoyed the work and gained valuable experience in legal drafting and international banking matters, two years later he decided to return to teaching, accepting a full-time position at Yale as an assistant professor.

In 1923, Llewellyn was promoted to associate professor. He stayed at Yale for only a year, before accepting a post at Columbia Law School so that his first wife could continue with her graduate studies at Columbia University. He remained at Columbia until 1951. While there, he authored a number of important books, including The Bramble Bush: On Our Law and Its Study (1931), adapted from a series of introductory lectures he had given to first-year law students during the 1929–30 academic year, when he was appointed the first Betts Professor of Jurisprudence at Columbia. He also wrote what eventually would become a leading casebook on commercial law, Cases and Materials on the Law of Sales, published the same year.

"A court is doing its duty when … with clear consciousness that it understands what it is doing and why, and with clear statement of both, it goes to bat on the whole of a broad situation."
—Karl Llewellyn

Llewellyn's developing theories on legal realism, introduced in The Bramble Bush, brought him much attention. Llewellyn declared that legal opinions must be examined to see how judges are influenced by factors that might have nothing to do with the law. He wrote that "[f]or the long haul, for the large-scale reshaping and growth of doctrine and our legal institutions, … the almost unnoticed changes … [are] more significant than the historic key cases." Thus, he

believed, lawyers should be trained to make persuasive arguments that emphasize the particular facts of a case, as those facts sometimes have a more significant effect on the outcome than does the applicable law.

Although Llewellyn's views were considered important and innovative, they also drew criticism. Opponents of his theories argued that, for practical reasons, legal realism was difficult to apply. Under Llewellyn's system of jurisprudence, they argued, a lawyer would be required to go to potentially ridiculous lengths to argue a case adequately, in an effort to learn every possible factor that could affect its outcome. As a result, Llewellyn's legal-realist theories never replaced the prevailing (and well-settled) view of the law as a set of well-defined rules to be applied to each individual situation.

Although his theories did not have quite the effect he had hoped for, Llewellyn is still widely viewed as an important legal scholar and author. His writings extend to nonlegal areas, including a book on anthropology, The Cheyenne Way (1941), which was a study of dispute resolution among the Cheyenne Indians, which he coauthored with anthropologist E. Adamson Hoebel. Llewellyn was also active in the Legal Aid Society, the american civil liberties union, and the National Association for the Advancement of Colored People (naacp).

In 1951, Llewellyn left Columbia for the University of Chicago Law School, where he and his third wife, soia mentschikoff, a commercial law scholar, accepted a joint appointment. Llewellyn taught there for nearly ten years and also served as chief reporter on the uniform commercial code, drafted during the early 1950s. He died in Chicago on February 13, 1962.