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Citation: 27 Stan L. Rev. 621 1974-1975

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 A Comment on the Jurisprudence of the
Uniform Commercial Code'
Richard Danzigt

The men who have studied it [the UCC] carefully have found
their study turning them into enthusiasts. Doubts vanish like
haze on a summer morning.'

Article II of the Uniform Commercial Code is one of those rare statutes

which has been drafted by a self-conscious jurisprude:' a person at least as
reflective about the role of law in society and the relation of lawmaking
institutions to each other as he was concerned about the particular law-
making task at hand.' It therefore seems an oversight to leave discussion of
the sales portion of the Code to those commercial lawyers for whom it bulks
so large.
For those interested in the evolution of legal philosophies, this portion
of the Code offers a rich opportunity. It is possible that rather than attempt-
ing to describe and then debate legal realism on the basis of its self-con-
scious, contradictory, and often overblown theoretical corpus, understand-
ing can be better enhanced if attention is paid to the principal work of the
leading proponent of that philosophy.' His io years of law-in-action as Chief
* I am grateful to John Merryman and Jane Collier for careful readings of an earlier draft of
this Essay. In addition, this Essay has benefited from conversations I had some years ago on related
topics with Art Leff and Harry Wellington of Yale Law School and Duncan Kennedy of Harvard Law
School. That these gentlemen will probably have forgotten those conversations underscores the fact
that they bear no responsibility for what follows, but it does not lessen my debt to them.
- B.A. 1965, Reed College; B. Phil. 1967, D. Phil. x968, Oxford University; J.D. X971, Yale Uni-
versity. Assistant Professor of Law, Stanford University.
x. Statement by Karl Llewellyn to the Law Revision Commission, in NEw YoRu LAw REvisiON
Cosias's', RECORD oF HEAMNGS O n1E UNIFOIrsa CONsafERCIAL CODE 27 (1954).
2. This term is not in any dictionary I have seen, but it was a frequent favorite of the man on
whom this Essay focuses. See W. TwiNsG, KArm LLEWELLN AND THE REALIST MovEMENT 120
(1973).
3. The Uniform Commercial Code reflects, of course, much more than the thought of Karl
Llewellyn. For an analysis strongly downplaying his influence in the original drafting, see Mentschikoff,
The Uniform Cornmercial Code, an Experiment in Democracy in Drafting, 36 A.B.A.J. 419 (1950).
The original drafts were themselves modified as a result of both legislative revisions, see note 7
infra, and amendments suggested by the Code's "Permanent Editorial Board." But if ever a statute
can be taken as suggestive of a legal philosophy this seems to be such a case. Article II was Llewellyn's
main area of interest. His wife and disciple was its second most influential author. Both retained sub-
stantial influence over the document through the period of the 1962 official text which is quoted in
this Essay.
4. The "realist" group was neither so united nor their program so crystallized as to make the view
or actions of any one thinker a touchstone for assessing the movement. But Llewellyn stands out,
both as the author of "the first self-conscious statement of Realism," see White, From Sociological
jurisprudence to Realism, 58 VA. L. REv. 999, 1017 (1972) (referring to Llewellyn's article, A
Realistic jurisprudence-The Next Step, 30 CoLmi. L. REv. 431 (1930)), and as the author of its
definitive defensive piece, Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44
HARV. L. REv. 1222 (931).
 STANFORD LAW REVIEW [Vol. 27: Page 62x

Reporter of the UCC promise to teach us more about Karl Llewellyn's

realist perspective than his lifetime of lectures on law-in-theory. "Realism"
in every sense of the word cries for us to take the measure of his jurispru-
dence at least as much by contemplation of its effect as by analysis of its
rhetoric.
A jurisprudential assessment of Article II of the Code ought to be im-
portant even to those with no interest in Karl Llewellyn or the realist move-
ment of which he was a part. For if law students are tacitly encouraged
to regard statutes as technical arabesques to be analyzed without reference
to a theory of law-that is to say, without reference to philosophic, socio-
logical, and economic premises-then they will be stunted in their capac-
ities to self-consciously shape society in their later incarnations as lawyers,
legislators, and judges. In focusing on the concepts of law and the role of
legal institutions that I believe underlie Article II of the Uniform Commer-
cial Code, I hope to show that it is not sufficient to read this or any other
law in a technical sense. The Code is more than a machine manual or a
firedrill regulation. It is too important to be left to commercial lawyers.

I
The central argument of this Essay is that Article II of the Uniform
Commercial Code is an idiosyncratic piece of legislation because in critical
provisions it neither pretends to the substance nor adopts the form of the
usual legislative enactment. It is suggested that an appreciation of the juris-
prudential theories of the Article's principal drafter makes the unusual as-
pects of the Code's approach more salient and more understandable. And it
is argued that the animating principle behind these theories and this legis-
lative achievement is, paradoxically, and, in some respects unwisely, a re-
nunciation of legislative responsibility and power.
At the outset it should be noted, however, that some of the peculiarities
of the Code derive as much from the atypical nature of the problems and
persons with which it deals as from the unusual character of Llewellyn's
view of the legal process.' Commercial law is at the margin of public law.
It deals with a subcommunity ("merchants"), whose members occupy a sta-
tus position distinct from society at large, whose disputes are often resolved
by informal negotiation or in private forums, whose relationships tend to
continue over time rather than ending with the culmination of single trans-
actions,6 and whose primary rules derive from a sense of fairness wide-
5. Though these paragraphs suggest that the peculiarities of Llewellyn's philosophy and the
peculiarities of contract law can in some respects be distinguished, it is a corollary of the argument
of this Essay that Llewellyn's unusual view of the legal process was in many respects a result of his
lifelong immersion in contract law. There are signs that the man was shaped by his special field, and
that his generalizations are extrapolations from it.
6. See generally MacNeil, The Many Futures of Contracts, 47 So. CAL. L. Rav. 691 (1974).
February 1975] JURISPRUDENCE OF THE UCC

spread-if imprecisely defined-within the commercial community. In this

situation the legislature (often ignorant of the actual circumstances that
control commerce) is not likely to conceive of itself as the arena for nego-
tiation between competing interest groups; it is not likely, in fact, to see
itself as a place where anything is decided. Instead, it often may merely
articulate and place the state's imprimatur on private arrangements fabri-
cated outside its halls. It would not be altogether surprising, then, to find
that the legislative process associated with the Uniform Commercial Code
was more like law-stating than law-making.
The uniformity sought by the Act's proponents undoubtedly further
limited the opportunities for legislative activism and even contributed to
some of the idiosyncracies of the legislation's form. If the Code were to be
widely adopted, it would have to be easily assimilated into the prevailing
ideology and the prevailing law. Individual legislatures were particularly
urged to restrict their lawmaking propensities, at least as to enactments
within the framework of this Act, and they were restrained from gener-
ating a unique legislative history by the prepackaged gloss provided in the
form of official commentary.7
Characteristics such as these which stem from a code that would be both
uniform and commercial suggest that there is more at play in Article II
than Llewellyn's jurisprudence. But this Essay suggests that Llewellyn's
jurisprudential preferences strongly reinforced these situational factors and
that the genius of the Code is derived in large measure from the mesh
Llewellyn effected between the pragmatic demands he faced and the juris-
prudential views he held.
To bring out the jurisprudential choices implicit in Llewellyn's work,
it is helpful to contrast his ideas with the thought of Hart and Sacks as
presented in their masterwork, The Legal Process: Basic Problems in the
Making and Application of Law.8 This influential work provides a useful
foil against which to highlight the originality of Llewellyn's contem-
poraneous achievement because these three professors reached different
positions after starting from a common point of departure and working
through a common area of theoretical concern. Each rejected the method
of "mechanical jurisprudence," 9 which they ascribed to a line of influential
7- There is, of course, a legislative history behind the UCC quite apart from that written by
the framers of the Code. Discussions were most intense in New York. See, e.g., NEw Yomx, LAw RE-
VISION CoMm'N, RECORD OF HEARINGS ON THE UNIFORM COM EsRcIAL CODE (1954) (2 vols.); NEw
Yoax LAw REvISIoN Comm'N, STuDY OF TnE UNIFORM CoM ERcIAL CODE (i955) (3 vols.); NEw
YosR,Lw REVISION CosmI'N, REPORT RELATING TO THE UNIFORM COMMERCIAL CODE (i956). In addi-
tion there are often state annotations to the Code. Their importance is, however, minimized by the
offidal comments.
8. H.L HART & A. SACmS, TnE LEGAL PRocEss: BASIc PROBLE s IN TI MA/ ING A.NDAPPLICA-
TIo oF LAw (1958).
9. The phrase is Dean Pound's. See Pound, Mechanical Jurisprudence, 8 CoLuma. L. REv. 6o5
(igoS).
 STANFORD LAW REVIEW [Vol. 27: Page 6:zx

legal thinkers from Blackstone to Beale, and instead proselytized for the
view that the law ought to be developed and assessed against the backdrop
of the everyday world within which it operates. Most significantly, while
a majority of their colleagues passed a lifetime immersed in either juris-
prudence, constitutional theory, common law analysis, or debate over the
meaning and application of particular statutes, these three thinkers shared
an almost unique concern with the theories of legislation and adjudication
in general.They thus were atypically reflective on what a statutory scheme
should look like, and how it should be read'
Llewellyn's and Hart and Sacks' views of the importance of legislation
are a study in contrasts. Hart and Sacks were preeminently concerned with
the law as a vehicle of growth and with legislatures as maximizers of social
utilities. Their reaction to mechanical jurisprudence was like Bentham's
to Blackstone: they substituted "purpose" for "analogy" as the creative force
in the law; they regarded legislation (in the ideal) as an instrument fab-
ricated to shape society in a manner chosen by the lawmaker, rather than
as a logical corpus derived from inviolable principles.11
Llewellyn also rejected Beale and Blackstone, but his was a different
alternative. Instead of regarding law as a body of deduced rules, or as an
instrument chosen by social planners from among a universe of alterna-
tives, Llewellyn saw law as an articulation and regularization of uncon-
sciously evolved mores-as a crystallization of a generally recognized and
almost indisputably right rule (a "singing reason"), inherent in, but very
possibly obscured by, existing patterns of relationships' To him an "im-
manent law" lay embedded in any situation and the task of the law author-
ity was to discover it. In perhaps the key passage in The Common Law
Tradition,Llewellyn quotes Levin Goldschmidt with approval:

io. Unfortunately for the analysis offered here this concern did not always flower into a full-
blown, clearly articulated viewpoint. The theoretical writings of both Llewellyn, see most significantly
his masterwork, THE COMMON LAw TRADrrIoN (I960), and Hart and Sacks avoid scores of important,
but hard, questions-the former by rhetoric that sometimes contradicts itself and sometimes signifies
nothing, the latter by offering questions where the authors themselves have no answers. Because of
these gaps or contradictions in thought, the contrast that follows is, I am sure, oversimplified. I none-
theless believe that these thinkers offer us two different ways of viewing the law, that the contrast
is fairly drawn, and that it is helpful.
ii. See, e.g., H.M. H~arT & A. SACKS, supra note 8, at i18: "[L)aw is concerned essentially with
the pursuit of purposes . . . [m]ust not [the decisionmaker] inevitably, at least with problems of
any novelty, make a choice among the possible purposes and the possible ways of accomplishing them?"
12. It is notable that the middle position in this trichotomy (Beale--Hart and Sacks-Llevwellyn)
is overlooked in the famous dictum of Oliver Wendell Holmes: "The life of the law has not been
logic: it has been experience." O.W. HoLasas, THE CosMox LAw I (i88i). Though Holmes' writing
undeniably indicates a perception of the role of ethics in the making of law, it seems more than a
curiosity that the foundation statement for legal realism should leave unarticulated what is most im-
portant for Hart and Sacks. (Anyone who doubts Holmes' influence on Llewellyn should note the
similarity in title of their masterworks.) As stated, Holmes offers the converse of the position adopted
by Beale and Blackstone. But his aphorism ignores the position earlier adopted by Bentham and later
taken up by Hart and Sacks, McDougal and Lasswell, and others. In their endorsement of Holmes'
position without amendment, the realists afford a due to the psychology that is reflected in Article II.
February 1975] JURISPRUDENCE OF THE UCC

Every fact-pattern of common life, so far as the legal order can take it in, carries
within itself its appropriate, natural rules, its right law. This is a natural law which
is real, not imaginary; it is not a creature of mere reason, but rests on the solid
foundation of what reason can recognize in the nature of man and of the life con-
ditions of the time and place; it is thus not eternal or changeless nor everywhere
the same, but is indwelling in the very circumstances of life. The highest task of
law-giving consists in uncovering and implementing this immanent law?3

This view has strikingly negative implications for an active legislative

role. If law exists and needs only to be discovered, it is not necessary or
helpful (but indeed probably only burdensome) that the law-articulating
agency be democratically elected and politically responsive; to proceed ef-
fectively, a lawmaker needs only a capacity for detecting the "situation
sense" and a good faith commitment to the exercise of that capacity. More-
over, since law is immanent in "the very circumstances" of time and place,
the agency best suited to find it is presumably not one of general inquiry
and decision, like a legislature, but rather one with a more particularized
insight: that is, a court should declare law by a careful review of "trouble
cases" (disputes). As Llewellyn's collaborator, Hoebel, wrote in another
context:
It is the case of trouble which makes, breaks, twists, or flatly establishes a rule, an
institution, an authority. ... [I]f there be a portion of a society's life in which
tensions of the culture come to expression, in which the play of variant urges can
be felt and seen, in which emergent power-patterns, ancient security drives, reli-
gion, politics, personality and cross-purposed views of justice tangle in the open,
that portion of the life will concentrate in the case of trouble or disturbance. Not
only the making of new law and the effect of old, but the hold and the thrust of
all other vital aspects of the culture, shine clear in the crucible of conflict . 4

Whereas Hart and Sacks would have ethics and economics-the peculiar
tools of the legislature-be their primary guides to lawmaking, the methods
and messages of sociology and anthropology" as he and Hoebel practiced
them, figure more substantially in Llewellyn's thought'
13. K. LLEwELLYN, supra note so, at 122. See also id. at 126-28.
14. E. HOEBEL, Tim LAW oF Pnnsssxvz M'N 29 (1954), quoted in W. TWINiNG, supra note 2,
at 161.
r5. I have borrowed this shorthand for the different approaches to judicial decisionmaking from
B. C.ssnozo, THE NATURE oF THE JuDIcTAL Paoss (1922), but in equating sociology and anthropology
with a value-free, purely observational, and not purposive orientation, I use the term in a rather
different (more modern) sense than Cardozo used it 50 years ago.
x6. In any jurisprudential system the role of lawyers is a corollary of first propositions about the
nature of law and of the jurisprude's differential assignment of institutional responsibilities to courts,
legislatures, etc. Not surprisingly, therefore, Hart and Sacks' and Llewellyn's differing perspectives lead
to differences in the importance and scope of the role of the lawyer. To Hart and Sacks the archtypieal
lawyer is a critical actor and a maximizer. "In small matters as well as large, the lawyer should be a
specialist in making the pies of social living larger." H.M. HART & A. SAcS, supra note 8, at 202.
Trained to view situations with a wider perspective than his client, he is charged with leading his client
to recognize that societal advantage may provoke or precondition individual gain. The converse is not
assumed: "As counsel for Mrs. Landy. in what mood would you enter the negotiations on her be-
 STANFORD LAW REVIEW [Vol. 27: Page 621

Article II of the Code can profitably be viewed as adapting the philos-

ophy of "immanent law" to a specific context. Just as Llewellyn found the
"Cheyenne Way"'" by the method of value-free observation, Article II fre-
quently speaks as though courts should discover the law merchant from a
careful, disinterested examination of custom and fact situations. Article II
is not, in the main, an example of legislative lawmaking, it is a guide to
law-finding. It does not tell judges the law; it tells them how to find the
law. The law is found not in doctrine, not in policy, but in directed explora-
tion of the "fact-pattern of common life."' 8 The search is for the "natural
law . . . of the life conditions of the time and place . . . "" Consider,
for example, the "law" promulgated by Uniform Commercial Code, sec-
tion 2-609:
Right to Adequate Assurance of Performance
(i) . . . When reasonable grounds for insecurity arise with respect to the per-
formance of either party the other may in writing demand adequate assurance of
due performance and until he receives such assurance may if commercially reason-
able suspend any performance for which he has not already received the agreed
return.
(2) Between merchants the reasonableness of grounds for insecurity and the ad-
equacy of any assurance offered shall be determined according to commercial
standards.

In a 1944 draft of this section Llewellyn offered a comment (later omitted)

that is revealing as to his aim and method: "Subsection 2 is technically un-
necessary.... But there are a number of lines of doctrine in regard to
what constitutes a breach, or even an excuse, which make it vital to remind
that the intention of this Act is to use the standards not of past decisions
but of current commerce.
In telling a court to use current "commercial standards" to determine
half with Tempest? In the mood of trying to get Tempest to agree to the highest possible rent, re-
gardless of the risk to him, and of trying to extract in other respects the maximum concessions? Or
with the thought that the parties were in some sense co-adventurers, and their opposing interests in
the matter of rent and some other items needed to be adjusted in the light of their common interest
in the success of Tempest's enterprise. Which approach would be more realistic?" Id. at 229. See also
id. at 263.
For Llewellyn the flow of the attorney-client relationship is in the opposite direction. Since the
correct result is immanent in a situation, the client is better placed to perceive it than the lawyer. The
lawyer's function is to learn from the client: to become informed about the situation, to cull the in-
formation he has gathered, to organize it, and to translate it into terms that will inform the court. (Note
again how analogous this position is to that of the anthropologist.) Llewellyn's lawyer is thus more
passive in his relations with clients and occupies a less creative role in the legal system than Hart
and Sacks would hope. Concomitantly, Llewellyn made it an aim of his drafting methpds to have the
Code speak in terms which could be directly understood and applied by the layman so as to minimize
the intrusion of a lawyer. See W. Twn'iso, supra note 2, at 304-5.
17. See K. LLEWELLYN & E. HOBEL, THE CHEYENNE WAY (1941).
i8. K. LLEWELLYN, supranote so, at 122.
5g. Id.
2o. UmFoam RvisaD SAEs AcT § 99(2), Comment (Proposed Final Draft no. 1, 1944) (italics
omitted).
February 1975] JURISPRUDENCE OF THE UCC

when "reasonable grounds" for insecurity exist, or to assess whether "ad-

equate assurance" or something more excessive is requested, or to decide
if supervision of performance is "commercially reasonable," this provision
-which is typical of Article II-is doing neither more nor less than asking
a court to find "the immanent laws" of "the time and place."
As another example of this jurisprudential perspective, consider the
much-discussed unconscionability clause of the UCC:
(i) If the court as a matter of law finds the contract or any clause of the con-
tract to have been unconscionable at the time it was made the court may refuse to
enforce the contract, or it may enforce the remainder of the contract without the
unconscionable clause, or it may so limit the application of any unconscionable
clause as to avoid any unconscionable result.
(2) When it is claimed or appears to the court that the contract or any clause
thereof may be unconscionable the parties shall be afforded a reasonable oppor-
tunity to present evidence as to its commercial setting, purpose and effect to aid
the court in making the determination.2 '

Many have noted that this section tells a court almost nothing save that
unconscionability is bad and that it exists. But these critics tend to treat
it as an aberration-as the product of a lapse or of a too frequently com-
promised drafting procedure. A jurisprudential perspective on the whole
of Article II would suggest that section 2-3o2 provides a naked example
of a very general phenomenon. To those who, like Hart and Sacks, see the
legislature as an engine of social reform, the vacuity of the clause is woefully
disturbing. But if the weight of lawmaking is thought best distributed else-
where, then the clause serves its purpose. It empowers and directs the courts
to "absorb the particular trouble and resolve it each time into a new, usefully
' 23
guiding, forward-looking, felt standard-for-action or even rule-of-law.

II
The troublesome vacuity of the unconscionability provision underscores
not only the passivity of the legislature in the UCC-Llewellyn scheme, but
also the singular difficulties that that jurisprudential approach has in deal-
ing with issues involving moral judgments. An allegation of indifference
to any moral imperative is an old charge against the realists, and a common
charge against the UCC,though the jurisprudential link between the two
critiques has been generally neglected. In a famous, but now much dis-
counted attack, Pound (whose thought, though protean, stands in the intel-
21. UNIFORM COMMERCIAL CODE § 2-302.
22. For the leading commentary, see Lefg, Unconscionability and the Code-The Emperor's New
Clatue, 115 U. PA. L. REv. 485 (1967). Contrast the form of § 2-302 with NAT'L CONsUMFR LAW
CENTER, NAT'L CONSUMER Acr §§ 5.107 & 6.189 (First Final Draft 1970).
23. K. LLEWELLYN, supra note io, at 513.
 STANFORD LAW REVIEW [Vol..27: Page 621

lectual lineage that leads to Hart and Sacks) charged that the realists con-
ceived of law "as a body of devices for the purposes of business instead of
as a body of means toward general social ends."2 Llewellyn replied, not by
rejecting Pound's ideal, but rather by arguing that the successful pursuit
of the ideal first required an appreciation of present reality. Realism was
only a method--"a technology"-for comprehending that reality.2
A defense which argues "first things first" is frequently appealing, but
it needs always to be tested by a scrutiny of its proponents' actions when
they reach "second things." Section 2-3o2 and like provisions scattered
throughout the Code provide us with precisely such a second thing in rela-
tion to Llewellyn's thought. If law study can at some times justifiably be
focused narrowly on the "is" rather than the "ought,"26 surely the same
cannot be said of lawmaking. One may fairly ask to what extent and in
what manner a sense of any moral imperative is reflected in these provisions.
The rhetoric surrounding the Sales Article is strikingly amoral. Llew-
ellyn spoke about the Code, and Article II is written, as though the in-
sights required for this lawmaking job were not born of any reflection on
the gap between the real and the ideal, but rather through the acquisition
of intimate familiarity with "current commerce." Thus in his Keynote
Memorandum,Re: PossibleUniform CommercialCode," Llewellyn spoke
of the Code as a means of regularizing "a very considerable body of com-
mercial law which is very largely non-political in character."2 8 And the
beginning of the Code echoes this orientation by cataloguing the "underly-
ing purposes and policies of this Act" as:
(a) to simplify, clarify and modernize the law governing commercial transactions;
(b) to permit the continued expansion of commercial practices through custom,
usage and agreement of the parties; 2
(c) to make uniform the law among the various jurisdictions. "
Taken on the basis of these pretensions, one might suppose that the Code
belies Llewellyn's defense of realism-the second step seems never to come.
In fact, however, the situation is more complicated than that. The Code is
24. Pound, The Callfor a Realist Jurisprudence,44 HARv.L. Rav. 697 (1931).
25. "What realism was, and is, is a method, nothing more, and the only tenet involved is that
the method is a good one .... Realism is not a philosophy, but a technology." K. LLEWmELYN, supra
note Io, at 5o.
26. Llewellyn, in Some Realism About Realism-Responding to Dean Pound, supra note 4,
at 3236, defended the "[t]emporary divorce of Is and Ought for purposes of study" (italics in the
original).
27. Memorandum from Karl N. Llewellyn to the Executive Committee on Scope and Program,
National Conference of Commissioners on Uniform State Laws, Re: Possible Uniform Commercial
Code, reprintedin W. TWINING, supra note 2, at 524-29.
28. Id. at 524. See also id.at 528.
29. UNIFORM COMMERCIAL CODE § 1-102(2). See also PRANErr Errouxr BoARD FOR THE
UNIFORM COMMERCIAL CODE,REPORT No. I, in UNIFORM CoMERcIA. CoDE, at xiv (1962 official text)
(stating the criteria for considering amendment of the Code).
February 1975] JURISPRUDENCE OF THE UCC

not oblivious to ethical concerns. However clearly section 2-302 signals a

legislative void, by its very existence it evidences the draftsman's commit-
ment to the notion that a moral referent is relevant to adjudication. What
the clause lacks in legislative prescription it charters the judge to provide
by other means.
It is the choice of means that is troublesome. The Code appears to be
predicated on an assumption that perception of an ideal can be effected by
the same "technology" used to secure an appreciation of the real. Ethical
questions are relevant, but they are regarded as posing problems of discov-
ery rather than choice. The premise appears to be that values have an
objectively ascertainable existence and a near universal acceptance and thus
can be judicially discovered just as a "reasonable price" can be ascertained
by reference to a market.
Thus, for example, if a seller is charged with breaching an implied war-
ranty of fitness for a particular purpose, the courts are directed by section
2-316(3) (c) to assess a claimed exclusion of the warranty according to
contemporary usage, and usage is to be discovered, according to section
1-2o5, Comment 5, by attention to the mores "currently observed by the
great majority of decent dealers, even though dissidents ready to cut cor-
ners do not agree." Who are "commercially decent dealers"? What, at the
margins, are the indices of decency and indecency? What if "decent" prac-
tices, as a judge perceives them, are not those of the "great majority," but
instead those of the dissidents? The presumption appears to be that what
is "commercially decent" and what is "unconscionable," what is "good
faith" and what is bad faith, what is good law and what is bad law will be
self-evident to one who carefully studies the situation. It is apparently an
axiom of this approach that "good law" cannot be described for courts, but
they will know it when they see it.
This approach is disturbing on several counts. First, insofar as the ap-
proach is workable, it tends to confine the impact of the law to a reaffirma-
tion of the predominant morals of the marketplace. Practices well below
the market's moral median may be constrained, but since the median is the
standard, by definition it will be unaffected. Further, this approach seems
to encourage exactly that which "realism" was supposed to discourage: a

3o. This axiom surfaces very visibly in Llewellyn's retrospective comment on UsuFoRas Com-
T.StECIAL CODE § 2-207. The section provides that: "[A] definite and seasonable expression of accep-
tance or a written confirmation which is sent within a reasonable time operates as an acceptance even
though it states terms additional to or different from those offered or agreed upon, unless .. . [inter
alia] they materially alter it . . . ."Llewellyn later explained the logic behind this provision as fol-
lows: "What has in fact been assented to specifically, are the few dickered terms, and the broad
type of the transaction, and but one more. That one thing more is a blanket assent (not a specific
assent) to any not unreasonable or indecent terms the seller may have on his form, which do not
alter or eviscerate the reasonable meaning of the dickered terms." K. LLEWELLymt, supranote 1o, at 370
(emphasis added).
 STANFORD LAW REVIEW [Vol. 27: Page 621

projection of a judge's values onto the scene before him, and then a "dis-
covery" of them as though they existed in an objectively determinable way.
The Code approach masks critical choices as technical assessments and
allocates them to decisionmakers (judges) of low visibility and low respon-
sibility from the standpoint of the larger public. Here again the perspective
offered by Hart and Sacks provides a helpful contrast. These thinkers rea-
son from the premise that there is no self-evidently right answer to an
ethical question. From this they infer that the resolution of such questions
requires choice, and to them choice ought, wherever feasible, to be made
in a self-conscious, visible way by those sensitive to the majority's validation
or repudiation of their choices through the electoral process: that is, by
legislators. Beyond this, because assessments of reasonableness, unconscion-
ability, materiality, and the like can be expected to vary unpredictably from
judge to judge, the Llewellyn approach seems paradoxically to undermine
that very certainty and consistency in the law that the Uniform Commercial
Code was dedicated to obtaining.
Lastly, an emphasis on the discovery of moral propositions is costly be-
cause it tends to focus attention on those considerations which are salient
for the parties at hand, at the expense of attention to larger concerns of
which the disputants are perhaps unconscious. That is, the methodology
itself encourages lawmakers to see law as Pound feared----"as a body of de-
vices for the purposes of business instead of as a body of means toward gen-
eral social ends."' 31
It could be argued that so narrow a perspective is peculiarly appro-
priate for a code dealing with the law of contracts. If private vices make
public virtues, the maximizing lawmaker may do well to keep his concepts
of utility to himself, leaving the parties free to determine their own course.
But such a view is by no means compelled by the subject matter. Hart and
Sacks begin their text with a commercial law case. Their approach none-
theless leads them to premise their discussion on the question: "to what
extent does justice require or permit account to be taken not only of the
equities as between the two immediate parties to the dispute but of the
effect which one or another decision will have upon the successful func-
tioning of the institutional system as a whole in the future ?""2 For them a
primary purpose of the "apparatus of official procedures" is to undertake a
"continuous review of . . .private decisions."'"
Llewellyn himself conceded the importance of a wider perspective. The
31. Pound, supra note 24, at 7o8.
32. H.M. HART & A. Slics, supra note 8, at io.
33. Id. at 9.It is interesting that in his academic writings Llewellyn claimed that he shared a con-
cern for the effects of transactions on those other than the parties to the transaction, but, as in his
response to Pound about goal orientation, he pleaded that for the moment he lacked the time or knowl-
edge to deal with that dimension. See text accompanying notes 34-35 infra.
February 1975] JURISPRUDENCE OF THE UCC

preface to his casebook on sales acknowledges that "[T]he book errs, I think,
in too happily assuming the needs of buyers and sellers to be the needs of
the community, and in rarely reaching beyond business practice in eval-
uation of legal rules."' As in his response to Pound, Llewellyn's plea was
one of first things first. "[Here] again, time for building a wider founda-
tion for judgment has been lacking.""5 And here again one finds the flaw
disturbingly replicated when it came time to do the real law work. While
Article II speaks the language of "fairness," "good faith," and "unconscion-
ability," nowhere do its terms seem animated by concerns beyond those
furthering the interests of the immediate parties, their households,"5 and
those creditors, assignees, or bona fide purchasers who come to stand in their
shoes.
III

If Llewellyn denigrated the traditional role of the legislature as con-

ceived by thinkers like Hart and Sacks, why then did he write a commer-
cial code and of what vitality is the document? An answer capturing part
of the explanation is that he wrote it to clear statute and case law debris
from the field so that commercial law could follow the natural flow of com-
merce. The comment to section 2-ioi is revealing:
This article is a complete revision and modernization of the Uniform Sales
Act ....

The arrangement of the present Article is in terms of contract for sale and the
various steps of its performance. The legal consequences are stated as following
directly from the contract and action taken under it without resorting to the idea
of when property or title passed or was to pass as being the determining factor.
The purpose is to avoid making practical issues between practical men turn upon
the location of an intangible something .... 37

But this answer is not sufficient for it is clear that Llewellyn's deference
to the norms of practice did not leave him without an appreciation for the
role of law-agencies, especially courts. To the contrary, he saw courts as the
critical agencies for dealing with the "trouble cases"--instances where there
34- K. LLEWELLYN, CAsEs AND MATERImALs o ThE LAw oP SALES, at xv n.3 (930).
35. Id.
36. See UNFORm COMIERCIAL CODE § 2-318.
37. Id. § 2-IOI, Comment. See also id. § 2-4oi, Comment i, in regard to passing of title. As
to the more general point, see the arguments of those who urged adoption of the Code at state bar
meetings, legislative hearings, and the like. E.g., Address by William B. Davenport. The Code Approach
and Sources of the Law, Institute on the Uniform Commercial Code, House of Delegates, Neb. State Bar
Ass'n Annual Meeting, Nov. 12, x964, printed in 44 NEB. L. REv. 362, 375 (1965): "[P]re-Code sales
law more frequently defeat[ed] the reasonable expectations of businessmen than it fulfill[ed] those ex-
pectations. So the draftsmen of the Code proceeded on the premise that Artide II should fulfill those
reasonable expectations, not defeat them. The draftsmen of the Code, in effect, said, 'Let's get rid of
a lot of these senseless technicalities of the law that defeat those expectations.'"
 STANFORD LAW REVIEW [Vol. 27: Page 62zi

was misunderstanding or uncertainty about right standards-that arise in

every system. On its most ambitious level Article II's aim, and very possibly
its achievement, may be said to have been to coerce courts into reviewing
cases in the manner Llewellyn thought they ought to be decided. Whereas
a code functioned for such diverse thinkers as Frederick the Great, Austin,
or Williston as a means of dictating a result,3 8 Llewellyn's UCC Article II
more often operated as a means of dictating a method. That method was
designed to prompt decision not according to the letter or the logic of a
statute or a juristic concept but rather according to the "situation-reason." 9
To achieve this end Llewellyn effected several radical innovations in
the form of his legislation. These innovations may be summarized by saying
that the provisions of Article II often take the form, not so much of legis-
lation as previously conceived by thinkers like Hart and Sacks, as of a com-
mon law decision as Hart and Sacks imagine one would be written. "[L]eg-
islators," remark Hart and Sacks, "characteristically give no reason (if one
overlooks legislative history) and courts characteristically do (if one ignores
summary per curiam decisions). The legislature relies primarily on the
authority of its position. The court supplements authority with an effort at
justification."4 But the Code consistently couples each statement of law
with a "comment" on precedent and a rationale explaining the reasons for
deviation from that precedent. When, for example, section 2-2oi announces
the formal requirements of a statute of frauds, a comment immediately
follows acknowledging that the prior law was different, explaining the
drafter's present intent ("[tihe changed phraseology of this section is in-
tended to .... ."), and concluding with the rationale thought to justify
the change ("market prices ...that are current in the vicinity constitute a
•..check. Thus if the price is not stated in the memorandum it can nor-
mally be supplied without danger of fraud ... .")'
More striking still, the legislation buttressed by these "judicial tech-
niques" is itself frequently phrased in what is, by Hart and Sacks' criteria,

38. See J. Fa aNK, LAw AND THE MODERN MrND 186-95 (1930).
39. K. LLEWELLYN, supra note io,at 64. Llewellyn also frequently spoke as though an optimum
mode of legislative-judicial interaction would be for legislatures to articulate a policy preference in
their statutes, and for courts to resolve situations according to the "reason" of the policy. This mode of
decisionmaking he termed "the Grand Style" and praised it highly. See, e.g., id. at 36-38, 64-72,
373-76.
Initially my intuition was that Article I of the UCC might profitably be analyzed as an attempt
to coerce courts into deciding cases in the Grand Style by means of the devices described in the text.
As I examined the "policies" endorsed by Article I, however, I came to the conclusion that at least in
this instance Llewellyn was rather like Fuller's Judge Foster. His "penchant for [creating] holes in
statutes reminds one of the story . . . about the man who ate a pair of shoes. Asked how he liked
them, he replied that the part he liked best was the holes. That is the way [he] feels about statutes;
the more holes they have in them the better he likes them. In short, he doesn't like statutes." Fuller, The
Case of the Speluncean Explorers, 62 HAgv.L. REv. 616, 634 (1949).
40. H.M. HART & A. SAcKs, supra note 8, at 771.
4. UNIFoRm COMMERcIAL CODE § 2-2oi, Comment.
42. rd., Comment i.
February 1975] JURISPRUDENCE OF THE UCC

a most common law manner. Hart and Sacks provide a convenient par-
adigm against which to measure this phenomenon. They suggest a model
of law with two poles. At one extreme are legislative enactments: per se
rules, rigid in their phrasing and application but modifiable in their long-
term implications because of the legislature's powers of amendment and
repeal. At the other extreme are court-made common law rules: these are
the product of cumulative decisions; they are open-textured so as to admit
different judicial applications on an ad hoc basis in different cases, but they
are relatively immutable because of a judicial reluctance to overrule prior
decisions. Two prototypes of speeding laws illustrate the point. A legisla-
ture can limit speeds to 50 miles per hour; a court is not suited to reach so
particular a result because there are no logical (others might say "prin-
cipled") distinctions between 49 and 50 miles per hour. Instead the com-
mon law condemns unreasonable speeding-a prohibition that demands
ad hoc treatments of each contested case. In Hart and Sacks' view, such
different styles of lawmaking are necessary and appropriate responses by
legislatures and courts to their different capacities to adapt their laws to
changing circumstances. Should technology or circumstance make 5o miles
per hour too low a limit, the legislature can amend its standard, while a
court that promulgated such a rule would find it difficult to adjust so clearly
defined a benchmark.!3
The Code belies so neat a division of institutional products. Often it
speaks in per se terms' But often, also, the promulgated rule is so general-
ized as to permit only an ad hoc application, as with section 2-206, Ofler
and Acceptance in Formation of Contract:
(i) Unless otherwise unambiguously indicated by the language or circum-
stances (a) an offer to make a contract shall be construed as inviting accep-
tance in any manner and by any medium reasonable in the circumstances
45

Section 2-608 (2), Revocation of Acceptance in Whole or in Part speaks in

similar terms:
(2) Revocation of acceptance must occur within a reasonable time after the
buyer discovers or should have discovered the ground for it and before any
substantial change in condition of the goods which is not caused by their
46
own defects. It is not effective until the buyer notifies the seller of it.
43. H.M. HART & A. SAcxs, supra note 8, at 138-41. Of course, each institution can come to
the rescue of the other: courts by interpreting statutes in ways that update them; legislatures by
"overruling" case law or displacing common law. This adds flexibility to the total system.
The difficulties that arise when courts establish too specific a rule of law is evidenced by the
famous "stop, look, and listen" rule created by Justice Holmes, see Baltimore & Ohio R.R. Co. v.
Goodman, 275 U.S. 66 (1927), and overruled by Justice Cardozo just 7 years later, see Pokora v.
Wabash Ry., 292 U.S. 98 (934).
44. See, e.g., UNsFORM COMMfERCIAL CODE §§ 2-205, 2-509, 2-715, 2-718.
45. Id. § 2-206.
46. Id. § 2-608(2) (emphasis added).
 STANFORD LAW REVIEW [VOL 27: Page 621

What is "reasonable time"? The Code speaks to this question, but in terms
that bear no resemblance to legislation as Hart and Sacks conceive it.
Section z-2o4. Time; Reasonable Time; "Seasonably."
(i) Whenever this Act requires any action to be taken within a reasonable
time, any time which is not manifestly unreasonable may be fixed by
agreement.
(2) What is a reasonable time for taking any action depends on the nature,
purpose and circumstances of such action.
(3)An action is taken "seasonably" when it is taken at or within 47
the time
agreed or if no time is agreed at or within a reasonable time.

Article II is rife with such open-ended words (none of them referred to

in the definitional section) 48 as "reasonable time,"' 52"reasonable medium,"' 03
"reasonable grounds,"'" even "reasonable price," "reasonable value, )
"fair and reasonable cause," 4 and "material alter[ation], 5 5 as well as the
notorious "unconscionability."5 The use of generalized guides to deci-
sion (for example, custom and usage) and open-ended terms (reason-
ableness, good faith, unconscionable), the injection of "official commen-
tary" declaring the intent of the drafters, and, above all, the scarcity of
provisions explicit enough to be applied without a consideration of circum-
stance, compel a court that would use the Code to move beyond the literal-
ism of "mechanical jurisprudence." Llewellyn summarized his approach
in The Common Law Tradition:
My argument is that such drafting, by centering the basic question, adding
the normal keys to answering and the available clear experience, and suggesting
lines of useful further inquiry, would provide something much more certain (as
well as much more easily usable) than the hundreds of pages of labyrinthine an-
57
notations to the N[egotiable] I[nstruments] L[aw] which hide the law today.

IV
In sum, whereas Hart and Sacks are very conscious of institutional dif-
ferentiation and assess an institution's performance in part according to
whether it exploits its unique capacities, Llewellyn has drafted a statute
47. Id. § 1-204.
48. ld.§ 1--201.
49. E.g., id. §§ 1-204(2), 2-20I(2), 2-205,2-207(I), 2-309(I), 2-706(2).
50. E.g., id. § 2-2o6(I).
5I. E.g., id. § 2-609.
52. E.g.,id. § 2-3o5, 2-7o9(i)(b).
53. E.g., id. § 2-305. As one commentator has remarked, "The word reasonable, effective in
small doses, has been administered by the bucket, leaving the corpus of the Code reeling in dizzy con-
fusion." Mellinkoff, The Language of the Uniform Commerdal Code, 77 YALE L.J. 185, 185-86
(x967) (emphasis in original).
54. UNIFORMa COMMERCIAL CODE S 2-719, Comment x.
55. Id. 2-207 (2) (d).
56. Id. 52-3o2. See also id. §52-3o9 & 2-719(3).
57. K. LLEwELLYN, supra note io, at 419 n.39-
February 1975] JURISPRUDENCE OF THE UCC

that minimizes the differences between the ways courts and legislatures
operate. He has delegated legislative decisions to courts, and has phrased a
piece of legislation that, save for its comprehensiveness, reads very much
like a judicial opinion.
This derogation of the legislative function appears to be premised on
the triad of dubious assumptions that self-evident ideal resolutions of situa-
tional problems exist, that they can be discovered by careful scrutiny of
actual situations, and that once articulated they will be widely accepted. To
Hart and Sacks, in contrast, the legislature is especially charged with making
law because ethical judgments about the good society and technical obser-
vations (derived from economic analysis) about how to reach that society
are open to debate and are legitimized only by the democratic character of
the institution charged with making them.
It is suggested here that the animating theory of Article II is that law is
immanent. The law job is to search it out. There is thus no need for a legis-
lature to create law. The central focus, as in all the writings of the realists,
is on courts. Article II is a document whose thrust is not so much to put law
on the statute books as it is to coerce courts into looking for law in life.