Llewellyn: Good, bad, and ugly

One of the great services of the Social Science Research Network is that it’s publishing not only the latest scholarship, but posting worthy articles from the past in a way that makes them accessible to those who (unlike the blessed contracts professor) do not have unlimited Lexis and Westlaw on their desktops.

Up recently is Ingrid Michelsen Hillinger’s The Article 2 Merchant Rules: Karl Llewellyn’s Attempt to Achieve the Good, the True, the Beautiful in Commercial Law, still fresh and interesting 20 years after its appearance in the Georgetown Law Journal.  Here’s the abstract:

In 1949, the Uniform Commercial Code was unveiled by Karl Llewellyn and his drafting-crew, which legally distinguished merchants and nonmerchants within Article 2 of the Code. However, the author suggests that a merchant muddle has arisen due to a fundamental misunderstanding of the nature and purpose of Article 2, which the author argues was never intended to codify merchant custom and trade usage. Section I of the article describes and then refutes the perception that the merchant rules codify actual business practices. It goes on to discuss some of the actual considerations that prompted the substantive content of the merchant rules. Section II explains how the merchant/nonmerchant bifurcation naturally resulted from Llewellyn’s jurisprudence. Section III explores the problem of deciding who is a merchant and why it should matter, using as an example the question of whether a farmer is a merchant under the statute of frauds. Finally, section IV discusses the legacy of Llewellyn’s Article 2 merchant theory and concludes that a thorough reevaluation of the merchant rules is now in order.

[Frank Snyder]