Document Type

Article

Publication Date

2007

Abstract

In her pathbreaking article, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute, Professor N.E.H. Hull rejects the conventional wisdom about the conservative, even reactionary, character of the First Restatements. The truth, she argues, is more subtle. The Restatements, and the larger ALI project of which they were a part, reflect the "'progressive-pragmatic"' worldview of the law professors most responsible for their creation. These professors were reformers. They rejected the formalism of earlier generations; for them, law was not a conceptual system but a practical tool for promoting beneficial social goals. They tempered their zeal for change, however, with an appreciation of political realities. Professor Hull unfortunately leaves one element of the received wisdom unchallenged. She accepts the conventional notion of Williston, the Reporter on the Restatement of Contracts, as an anti-reform conceptualist whom progressives had to mollify in order to advance their agenda. In fact, Williston shared the progressives' distaste for conceptual rigidity and championed the Restatement's greatest doctrinal innovation. He favored formalism for its practical advantages, but he did not object to gradual reforms that could make commercial law more just and predictable. He distrusted some of the progressives' scholarship, but he did not entirely discount it. In Hull's terms, Williston was a "conservative-pragmatist."

Far from opposing the reformers, he actually helped them to achieve some of their goals. I discuss Williston's jurisprudence at length elsewhere. Instead, I will focus my comments on Williston's role in establishing the Restatement's greatest doctrinal innovation, the doctrine of promissory estoppel.

Williston endorsed promissory estoppel only gradually. He toyed with the concept in his 1920 contracts treatise, but ultimately concluded that the weight of case law opposed it. By the time he became Reporter, though, he enthusiastically embraced the doctrine. Williston came to believe that real world concerns about rough justice and business convenience required the exception to the bargain requirement.

My observations here do not detract from Professor Hull's ultimate point about the reform agenda of many of the scholars who engineered the creation of the ALI. I do hope, though, that I have provided a helpful qualification to her work. At least with respect to the contracts Restatement, the reformers did not need to work around a recalcitrant Reporter. Notwithstanding the myth that later Realists like Gilmore created, Williston was, in fact, the progressives' ally.

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