Article by Shael Herman
To a student of legislation drafted in the civilian tradition, the Uniform Commercial Code is an atypical, eccentric statute. Although it covers less ground than most civil and commercial codes, its voluminous editorial comments make it heftier and more talkative. The Uniform Commercial Code differs from Romanesque codes in both style and substance, but Llewellyn's task in drafting it was essentially like that of Portalis, chief drafter of the Code Napoleon: to divine essential features in the flux of daily conduct, and to embody in general propositions "principles . . . fertile in application" and free of "details of questions which may arise in particular instances." Rooted in the view that history always outstrips the human imagination, Portalis' injunction to both himself and future drafters suggested that a workable code always had to be flexible for it could never be complete. Portalis' cardinal guide for action, one that he must have repeated often in hopes of saving his work from the fate of the overly particularistic Prussian code, was difficult to implement even in France where comprehensive legislation was the rule, not the exception. From Geny's Methode d'interpretation et sources en droit prive positif, Llewellyn would have known Portalis' views, but their implementation in the United States might have seemed nearly impossible. In the United States, the codification movement had climaxed and then dissipated in the nineteenth century; Holmes' dictum from Lochner v. New York that "general propositions do not decide concrete cases" had a powerful influence upon lawyers' minds. Often the sentiment Holmes expressed was translated into diatribes against codification. Llewellyn's campaign for the Uniform Commercial Code demonstrated that he did not subscribe to Holmes' dictum. He could not have ignored its power either, for it neatly summarized a powerful American preference for case law over organic legislation as a way to settle private disputes.
Llewellyn himself appreciated this American preference. He edited a superb casebook on sales, and The Common Law Tradition was largely case analysis. In his view, the case method was an indispensable tool for bringing out the distinction between the actual decision and "passing dictum." Yet for several reasons judicial lawmaking was inherently unsuited for the unification of commercial law. Judicial rulings, although they usually made "commonly good sense," were narrow. Even when judges innovated, their innovation was "confined regularly within rather narrow limits--partly by the practice of trying hard to square the new decision with old law; it [was] hard to keep daring innovations even verbally consistent with old rules." Furthermore, innovation was "confined through conscious policy"; case law rules, even when they were new, were "applied as if they had always been the law." This policy "derived from our convention that 'judges only declare and do not make the law.'" Judges, because they could not tell how their retroactively effective rulings might upset human expectations, "moved very cautiously into new grounds." For the unification of law, Llewellyn believed statutes were preferable to judicial decisions:
Statutes are made relatively in the large, to cover wider sweeps, and looking forward. They apply only to events and transactions occurring after they have come into force; that element of caution disappears. They are . . . a recognized machinery for readjustment of the law. They represent not single disputes, but whole classes of disputes. They are political, not judicial in their nature, represent readjustments along the lines of balance of power, decide not single cases by a tiny shift of rule, but the rearrangement of a great mass of clashing interests. Statute-making . . . is confined within what in relation to society at large is a straitened margin of free movement . . . .
Llewllyn's understanding of commercial law was profound. It was matched by his respect for the creative energy of commercial lawyers, a potential that could be tapped only if they could all be pointed in one direction. Like Portalis, Llewellyn had to capture general principles uniquely suited to his milieu. To be successful, the code had to anticipate future trends. But it also had to account for pre-code law because it was folly ever to think that the past could be abolished. He probably would have appreciated Portalis' unrevolutionary sentiment, uttered in response to charges that the Code Napoleon was not entirely new and revolutionary, that no "nation has ever indulged in the perilous undertaking of suddenly cutting itself off from all that has civilized it, and of remaking its entire existence." Implicit in the articulation of general principles was a need to harness and channel the energies and even the biases of lawyers in a country where there had never been comprehensive codification. Underlying Llewellyn's explicit agenda—the articulation of first principles—lay the need to take account of context. This article examines drafting techniques Llewellyn used to assure that the Uniform Commercial Code would take hold and endure.
About the Author
Shael Herman. Adjunct Professor of Law, Tulane University; B.A. 1964, M.A. 1965, J.D. 1969, Tulane University.
Citation
56 Tul. L. Rev. 1125 (1982)