Llewellyn’s paper is organized as a series of named but unnumbered sections. The list below indicates the range of sections we will be discussing in each of the two classes. In the notes following the list, I suggest a few specific passages to focus on for each class.

The two days we will spend on Llewellyn’s paper will focus, respectively, on Llewellyn’s version of the Legal Realists’ critique of traditional thinking about the law and on his own positive suggestions about the direction a study of the law should take.

• Llewellyn describes a scheme of remedies, rights and rules, and interests in “Remedies, Rights and Interests” (pp. 435-438), and he takes this scheme to epitomize traditional thinking about law, and you will find references to this scheme throughout the paper. He summarizes his critical position regarding the scheme (and, really, the whole of what he argues for in the paper) on p. 442 at the end of the section “Interests.” In between, you will find some reasons for his critique.

• In the section on “Words v. Practice” (pp. 443-445), he sharpens the distinction he sees between his perspective and the traditional one, and this begins a part of the paper where he discusses the significance of the traditional framework from his own point of view. We will look at what he has to say about interests in this regard in the first class and what he has to say about rules and rights in the second.

• Llewellyn develops some of the more distinctive features of his view of the law in the latter part of the second assignment. You can regard “Background of the Behavior Approach” (pp. 454f) as a sort of introduction to the rest. In case Llewellyn gives the impression that the approach he favors was far outside the mainstream, it’s worth noting that, of the list of people he cites on p. 454, one (Brandeis) was already a Supreme Court justice and two more (Frankfurter and Douglas) later became justices. After digesting this introductory section, look for a few points in the remaining sections that you take to be especially significant, and we will spend some time discussing them. In general, be sure to note LLewellyn’s emphasis on the particular, the narrow, the special case; this is characteristic of his style of thought.

You should also stand back from Llewellyn and compare him to others you have read.

• Ask first how close he is to Holmes. Is Llewellyn’s form of realism the way that you would expect Holmes’s view to be developed? Here you might think of a slogan Llewellyn somewhat incautiously provided in The Bramble Bush (p. 3): referring to “judges or sheriffs or clerks or jailers or lawyers,” he said there, “What these officials do about disputes is, to my mind, the law itself.”

• Think also about other ways of pursuing the implications of realism. In the period between WWI and WWII, people influenced by Holmes tended to think that the appropriate way to understand the law was to study the human behavior that is associated with it. In approaching this sort of study, some focused on sociology and others on psychology. Llewellyn’s work is an example of the former while an example of the latter is Jerome Frank’s Law and the Modern Mind (1930). You read a selection from that book along with Holmes, but that selection doesn't highlight the special features of Frank’s sort of realism. The preface to a later edition of the book that is included in the Culver anthology (pp. 255-258) may suggest a little more.

If you are curious, another good way to get a sense of the difference between LLewellyn and Frank is to look at reviews each wrote of books by the other—Llewellyn’s review of the book just mentioned and Frank’s review of Llewellyn’s The Bramble Bush (1930). Llewellyn’s review appears as part I of a symposium on Frank’s book in the Columbia Law Review, vol. 31 (1931), pp. 82-90 (on JSTOR); and Frank’s review appears in The Yale Law Journal, vol. 40 (1931), pp. 1120-1125 (on JSTOR). The latter review also includes some comments on the paper we are reading.

• Finally, ask also how someone who thinks more in terms of rules (either Aquinas or Austin) might respond. How might they defend themselves against Llewellyn’s criticisms? And what do you think they would have to say about the aspects of the law he points to in the latter part of the paper?