Monday, November 15, 2004
In his day, Samuel Williston must have been a giant—not only the greatest contract scholar of the times, but widely popular with practicing lawyers and influential with legislators. No legal scholar has had more influence on modern contract law than Williston; much of the work of scholars like Corbin and Llewellyn is simply remodeling the house designed by Williston in the First Restatement and the Uniform Sales Act.
Yet generations of internecine scholarly warfare have reduced his reputation these days to that of a dim-witted ivory tower pedant whose jurisprudence was as pointless and unreal as that of any any medieval Schoolman. Only Christopher Columbus Langdell falls lower on the totem pole than Williston—perhaps because "Christopher Columbus Langdell" is a more absurd name.
In a new article, Rediscovering Williston, Mark Movsesian (Hofstra) goes back and looks at Williston’s work, finding it less "arid and conceptual" than it is usually regarded. Movsesian is not a Williston partisan, but a fair-minded critic who finds a great deal more pragmatism in the old man than his reputation might suggest.
The article is forthcoming in the Washington and Lee Law Review.
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.