Peters, Ellen A

English

Yale Law School Legal Scholarship Repository

Arthur Leff as a Scholar of Commercial
and Contract Law
Ellen A. Peterst
In an Afterword to last winter's Legal Scholarship Symposium at Yale,
Arthur Leff wrote of the joy of crafting "something true and truly put."' I
find that a particularly apt description of Arthur's work in the field of
commercial and of contract law. It is Arthur's contribution to that field of
law that I want briefly to recall this afternoon.
In the spring of 1967, as a young assistant professor of law at the
Washington University Law School, Arthur published an article entitled
Unconscionability and the Code-the Emperor's New Clause.2 That fall,
because of the publication of that article, Arthur joined the faculty at
Yale. When it was first published, Friedrich Kessler and I read it virtu-
ally simultaneously, and Yale moved quickly, anticipating, correctly as it
turned out, that faculty appointments committees at Harvard and at Chi-
cago and at other distinguished schools would also immediately take no-
tice. All of us were immediately impressed by every aspect of the article:
by the originality of its research, the subtlety of its analysis, and the felic-
ity of its presentation. Today, shepardizing that article, one of the most
celebrated in the bibliography of the Uniform Commercial Code, one finds
that it has been cited an astonishing 156 times since the date of its
publication.
The reasons for the article's immediate, well-deserved renown are clear.
Arthur took as his assignment an inquiry into a part of the Uniform
Commercial Code that had been profoundly troublesome to the Code's
draftsmen and had been severely criticized in the deliberations attending
its enactment. It bears remembering that, in 1967, the battle over enact-
ment of the Code had just concluded. Intensive debates about the merits of
particular provisions and extended controversy about the wisdom of its
new approaches had left scars which had not yet had time to heal com-
pletely. There was a section in Article Two of the Code that allowed
courts to set aside contracts in whole or in part for the sole reason that the
t Associate Justice, Connecticut Supreme Court, and Professor (Adjunct) of Law, Yale Law
School
1. Leff, Afterword, Symposium on Legal Scholarship: Its Nature and Purposes, 90 YALE L.J.
955, 1296 (1981).
2. Leff, Unconscionability and the Code-the Emperor's New Clause, 115 U. PA. L. REV. 485
(1967).
230
Arthur Leff
offending contract provisions failed to comply with an undefined standard
of unconscionability 3 This was one of the Code's innovations that had
been most frequently and most vehemently denounced.' Even some of
those who agreed that some contracts, at least, warranted judicial policing,
were doubtful whether the concept of unconscionability was up to the
task: it was too murky, too mushy, in short, it was unmanageable. Arthur,
in his article, devised a framework for dialogue about unconscionability
that stripped the relevant statutory language, and its attendant drafting
history, to its bones. Having demonstrated the nakedness of the emperor,
Arthur proceeded to restore his dignity by devising a distinction between
unconscionability that is procedural and unconscionability that is substan-
tive. That distinction, that framework for analysis, brought the drafts-
man's effort into focus and made it workable. Since the publication of
Arthur's article, no one has ever again been able to address the problem of
unconscionability without incorporating the watershed distinctions that
Arthur created. In commercial law, his article has taken a place in history
similar to that accorded to Warren and Brandeis in the law of privacy,'
and Fuller and Perdue in the law of remedies. 6
Ironically, the instant acclaim with which the article was received,
while of course gratifying, had curious side-effects. It was almost as if the
rhetoric was so automatically illuminating that the contents of the body of
the article could be taken for granted, virtually unread. Commentators
jumped to conclusions about the purpose that the procedure-substance dis-
tinction was designed to serve. The article itself became something of a
target for criticism, as if its discovery of analytic shortcomings in the
drafting of the Code was properly to be seen as a failing of the author
rather than as a failing of the draftsmen." It is, of course, not unusual to
blame the messenger who bears unwelcome tidings. What surprised Ar-
thur was the critics' apparent failure to perceive that his distinctions
would enable the disputed section to play a much more important role
than it would have enjoyed in its prior, amorphous, unanalyzed state.
For Arthur himself, the central themes developed in the article on un-
3. U.C.C. § 2-302 (1962).
4. See Ireton, The Commercial Code, 22 MisS. L.J. 273, 280 (1951); Comment, Policing Con-
tracts under the Uniform Commercial Code, 18 U. CHLI. L. REV. 146 (1950); Note, Definition and
Interpretation of Unconscionable Contracts (Uniform Commercial Code), 58 DICK. L. REV. 161
(1954); see also Beutel, The Proposed Uniform Commercial Code as a Problem in Codification, 16
LAW & CONTEMP. PROBS. 141 (1951) (criticizing the Code's new concepts as unsettling to commercial
law); Williston, The Law of Sales in the Proposed Uniform Commercial Code, 63 HARV. L. REV.
561 (1950).
5. Warren & Brandeis, The Right to Privacy, 4 HARV. L.REV. 193 (1890).
6. Fuller & Perdue, The Reliance Interest in Contract Damages (pts. 1 & 2), 46 YALE L.J. 52,
373 (1936-1937) .
7. See Ellinghaus, In Defense of Unconscionability 78 YALE L.J. 757 (1969); Murray, Uncon-
scionability: Unconscionability 31 U. PITT. L. REV. 1 (1969)..
The Yale Law Journal
conscionability transcended that article's necessarily narrow focus. In-
trigued by the varieties of ways in which contracting parties could be
deceived, or could deceive themselves, he wrote an article entitled Injury,
Ignorance and Spite,' and a few years later, a book on Swindling and
Selling.' In these works, he brought to bear his formidable wit and his
lively sense of drama to illuminate the frailty of the human condition-the
readiness with which so-called rational contracting parties succumb to
self-delusion and to greed. These inquiries served to reinforce his earlier
views that healthy skepticism was the proper vantage point from which to
view many claims of procedural unfair dealing.
To me, his work concerning substantive unconscionability is potentially
even more significant. Responding to his own skepticism about the gains
likely to be achieved from further emphasis on imperfections in the bar-
gaining process, Arthur began to challenge the role of the bargaining pro-
cess in contract itself. For over two hundred years, it has been a common-
place of contract law that the enforceability of promises is established by
showing that the contracting parties have engaged in the process of bar-
gaining. This fundamental tenet of the law of contracts has survived un-
scathed in the Restatement Second of Contracts, which provides in an offi-
cial comment to the revised section 75 that, "[iln modern times the
enforcement of bargains . .. is extended to the wholly executory ex-
change in which promise is exchanged for promise . . . . The promise is
enforced by virtue of the fact of bargain, without more."',, What contract
law has done, as Arthur trenchantly pointed out in an article entitled
Contract as Thing, is to enshrine the process of bargain, rather than the
product of bargain, as the quintessential hallmark of what contract is." In
fact, the process- of bargain has, in recent years, been substantially ex-
panded to incorporate the effect of reliance upon a promise as a basis for
the enforcement of that promise. Grant Gilmore has prophesized that this
expansion signals the end of contract as we know it.' 2 Arthur's critical
attack on contract is more fundamental. Whether a contract is the result
of a bargain or of reliance, it is still validated by reference to the process
which led to its creation. Arthur's inquiry cast doubt on the utility of such
a pervasive singly-focused approach. Building on the work of Wesley
Newcomb Hohfeld, 1" he argued that contract, like property, might well be
viewed as a bundle of powers, privileges and rights. From a Hohfeldian
8. Leff, Injury, Ignorance and Spite-The Dynamics of Coercive Collection, 80 YALE L.J. 1
(1970).
9. A. LEFF, SWINDLING AND SELLING (1976).
10. RESTATEMENT (SECOND) OF CONTRACTS § 75, comment a (1979).
11. Left, Contract As Thing, 19 AM. U.L. REV. 131 (1970).
12. G. GILMORE, THE DEATH OF CONTRACT (1974).
13. See W. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS (1919).
Vol. 91: 230, 1981
Arthur Leff
perspective, he maintained that it might be useful to scrutinize the con-
tract as a product, as a thing, as a device that imposes private regulatory
law on the contracting parties." At least in some contexts, where bargain-
ing is conspicuously ephemeral, such as in contracts of adhesion, Arthur
suggested that more emphasis on product and less on process would en-
able courts and commentators to achieve desired goals more openly and
hence more efficiently." It was an insightful idea that will continue to
engage the attention of serious scholars in the field of contract law for
many years to come.
I do not want to end this brief description of Arthur's work without
adding a more personal note. It was a joy to be able to work with Arthur
as a colleague. The exuberance of his curiosity about the law was exhila-
rating to us all. It was contagious. We would share wonderful cases that
became more wonderful for the sharing, cases newly discovered in the ad-
vance sheets, or old chestnuts with newly discovered oddities. I was de-
lighted when the Southmayd Chair that I had occupied before I went on
the bench came to be Arthur's endowed chair. Words cannot express how
much I miss him. But his memory will remain, always, and his works will
endure.
14. Leff, supra note 11, at 144-47; see generally Eisenberg, Private Ordering Through Negotia-
tion: Dispute-Settlement and Rulemaking, 89 HARV. L. REV. 637 (1976) (analysis of role of princi-
ples, rules, and precedents in private negotiaton).
15. See Leff, supra note 11, at 148-55.
Writings of Arthur Allen Leff
Books
SWINDLING AND SELLING (1976).
Articles
Comment, in PAPERS AND COMMENTS DELIVERED AT THE EIGHTH ANNUAL WORKSHOP ON COM-
MERCIAL AND CONSUMER LAW (J. Ziegel ed. 1980).
Contract As Thing, 19 AM. U.L. REV. 131 (1970).
Thomist Unconscionability, 4 CANADIAN BUS. L.J. 424 (1980).
Unspeakable Ethics, Unnatural Law, 1979 DUKE L.J. 1229 (1979).
The Cultural and Social Impact of Society on American Advertising, 1970 LAW & SOCIAL ORDER 397
(1970).
The Pontiac Prospectus, 2 Loyola Con. Port. J. 25 (1974).
Law and Technology-On Shoring Up a Void, 8 OTTAWA L. REV. 536 (1976).
Unconscionability and the Code: The Emperor's New Clause, 115 U. PA. L. REV. 485 (1967).
A Commentary on Leff, Injury, Ignorance and Spite-The Dynamics of Coercive Collection, 33 U.
PITT. L. R. 667 (1972).
Unconscionability and the Crowd-Consumers and the Common Law Tradition, 31 U. PITT. L. R.
349 (1970).
Economic Analysis of Law: Some Realism About Nominalism, 60 VA. L. REV. 451 (1974).
Arno Cumming Becht, 1978 WASH. U.L.Q. 631 (1978).
Medical Devices and Paramedical Personnel: A Preliminary Context for Emerging Problems, 1967
WASH. U.L.Q. 332 (1967).
Law and, 87 YALE L.J. 989 (1978).
Correspondence, The Lawyer as Friend, 86 YALE L.J. 573 (with E. Dauer 1977).
Injury, Ignorance and Spite-The Dynamics of Coercive Collection, 80 YALE L.J. 1 (1970).
Book Reviews
N.Y. Times, April 30, 1972 (Book Review), at 4, reviewing M. GREEN, THE CLOSED ENTERPRISE
SYSTEM (1972).
29 STAN. L. REV. 879 (1977), reviewing R. UNGER, KNOWLEDGE AND POLITICS (1975).
49 TEX. L. REV. 827 (1971), reviewing P. KEETON & M. SHAPO, PRODUCTS AND THE CONSUMER:
DEFECTIVE AND DANGEROUS PRODUCTS (1970).


Arthur Leff as a Scholar of Commercial and Contract Law

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Arthur Leff as a Scholar of Commercial and Contract Law

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