Karl Llewellyn and Joseph Smith on the Couch

Do you ever have one of those odd moments when you are seeing something unfamiliar and suddenly it becomes extremely familiar? Or perhaps you see something very familiar but it suddenly reminds you of something equally familiar but totally different? I had one of those experiences today.

I was reading a law review article on Karl Llewellyn. For the uninitiated, Llewellyn is one of the giants of twentieth-century American legal thought, particularly if you – like me – have an interest in real legal subjects like contracts. He was one of early leaders of the Legal Realist movement, Young Turk intellectuals who shook up the jurisprudential establishment in the 1920s and early 1930s. (Imagine F. Scott Fitzgerald or Ernest Hemingway as law professors.) He went on to become a pioneer in legal sociology, writing a well-respected book on legal practices among American Indians. Finally, at the end of his life he completed the transition from audacious bad-boy of the law reviews to Grand Old Man, serving as Reporter for the Uniform Commercial Code and largely re-writing the whole of American commercial law, especially the law of sales. Every time you buy a tangible physical object in the United States, you are governed by rules that Llewellyn wrote.

I teach the Uniform Commercial Code, so I have been trying to find tidbits of historical and philosophical color that I can add to my class. Thus, this afternoon I found myself reading a very lengthy article arguing that Llewellyn’s jurisprudential development can be traced out in the story of his alcoholism, sexual impotence, and string of marriages. The article was that rarest of beasts in the modern world: Something that took Freudianism seriously. All of Llewellyn’s most private dirty laundry was aired, and his adult behavior was carefully correlated to the sexual dynamics of his childhood. I was even treated to a Freudian reading of a poem written by the 9-year-old Llewellyn.

The whole experience reminded me of nothing so much as reading Fawn Brodie or perhaps D. Michael Quinn. The faith in the Vienna delegation was strongly Brodiesque, almost touching in the chastity and simplicity of its psychological beliefs. There were even footnotes of the kind that would have made Quinn proud, solemnly informing me that learning about Llewellyn’s inability to…you know…in the mid-1930s allows us to see him not as a lesser being, but as one with a deeper, richer, and more ambiguous life. Apparently, I can still have a testimony of Article 2 of the UCC even after I find out that Llewellyn was teaching his classes drunk and hiding his liaison with his research assistant from his wife. Needless to say, I’m relieved.

My reaction to the pyschologizing of Llewellyn, I find, is very similar to my reaction to the pyschologizing of Joseph Smith. At one level, the torrent of Freudian characters – id, ego, and superego all chattering away with one another – seems entirely implausible. On the other hand, one can’t help but feeling that one has a better sense of his character for knowing more of the details. And yet, I can’t help but see the attempt to trace the genesis of the UCC to sexual repression in Llewellyn’s childhood as being ultimately less than compelling as a jurisprudential theory.

I don’t know that I’ll include stories of Llewellyn’s impotence in my class. It is not that I necessarily feel a need to protect his sacred memory. Llewellyn and I have more than our share of fights, and one of the great joys of being a commercial law professor is the ability to spar with the mind of Llewellyn as it lives on in the code. I just don’t know how much it is going to help my students understand what is going on in the UCC.

8 comments for “Karl Llewellyn and Joseph Smith on the Couch

  1. Susan S.
    October 4, 2006 at 9:36 pm

    And how is this parallel to Joseph Smith? We don’t care if he slept with his students, was an alcholic, etc., if he wrote good religion? Not sure it’s exactly parallel? Or am I running too fast here as I settle into my evening meditations on what the net has to offer. . . . .

  2. October 4, 2006 at 10:32 pm

    Here is the parallel in simplified form:

    (1) The claim that pyschology of a certain stripe holds a key for understanding intellectual production.
    (2) The author’s need to reassure the reader that the subject, despite the feet of clay revealed, is still worthy of admiration.

    1 is Brodie. 2 is Quinn. I think that the claim in 1 is mistaken. The claim in 2 simply left me with an odd feeling of deja vu. That said, I qualified my skepticism by noting that the addition of detail does give one a better sense of character. I feel like I know Llewellyn better even if I don’t buy into the more grandiose claims the authors make about the link between Llewellyn’s pyschology and the production of the UCC.

    I’m not claiming any deeper parallel than that. This is not a deep post, just some odd passing feelings upon reading an article on commercial law (sort of).

  3. Jonathan Green
    October 5, 2006 at 4:19 am

    Without knowing Llewelyn all that llwell, the comparison to Fitzgerald or Hemmingway seems apt. Sometimes the only difference between the scholarship and the poetry of a given decade is the presence of footnotes (and in the case of “The Wasteland,” not even that). In this case, it seems there’s little difference in how biography writing treats past figures of any kind. That the sexual lives of authors provide special access to their psychology and thus to their texts is an intellectual fashion that I hope has run its course, though. While occasionally enlightening, too often it invites reinterpretation of a vast body of work through a single, limited lens.

  4. MDS
    October 5, 2006 at 12:20 pm


    I attended law school at Miami, where Lewellyn is highly revered. 1Ls are expected to come to school having read the Bramble Bush, and take a first semester course called “Elements” which has as a text, “The Theory and Craft of American Law” by Soia Mentschikoff and Irwin Stotsky. The text pays heavy homage to Llewellyn and may be interesting for you and/or your students.

    Mentschikoff was Llewellyn’s wife, played a significant role in working on the UCC with him, and served as dean at Miami from 1974 – 1982. She brought with her from U. Chicago many of Llewellyn’s and her comrades and their influence is still strongly felt on the faculty.

    A nice biography of Soia is available here: http://library.law.miami.edu/soia.html

  5. MLU
    October 6, 2006 at 1:05 am

    Most of my education, if that’s what it was, was delivered through Freudian or Marxist interpretations.

    It’s a good way to develop an awareness of how many explanations of what other people are “really” up to are just fictions. I don’t get the sense that Fawn Brodie is writing about Joseph Smith at all. Just a fictional character she named after a historical character–one she doesn’t understand very well.

    Rarely do I find psychological explanations persuasive, though, like other forms of imaginative writing, they can be quite interesting. They are most maddening, I think, when they take the form of attacks, of which the craze to debunk the work of great figures is the common form today. I imagine we are all fated to have others see our own foibles and weaknesses in a sort of powerful light that Wendell Berry described as being hell–until it is heaven. How do I see others’ problems in a way that increases my fondness for them, and my admiration for them?

    I am more likely to enjoy writers who are practicing the arts of reading others’ psyches in that spirit.

  6. ECS
    October 6, 2006 at 9:23 am

    Nate, the Lord will bless you for your diligence in making UCC more interesting to your students. That said, I loved my UCC class, and I took distinct pleasure in memorizing the entire Article 9. My outline was a work of art. I’m thinking of donating it to the Smithsonian.

  7. Austin Frost
    October 22, 2006 at 2:04 am

    I\’m a 1L who is interested in church history. There is an important similarity between Llewellyn and Smith: neither man could properly use a comma.

    June 19, 2008 at 2:37 pm


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