Llewellyn's 1931 Contracts Mid-Term: You Be the Judge

Soon I'll be talking about Karl Llewellyn's stand against lynching -- a short but revealing foreword he wrote to an NAACP brief urging the federal prosecution of lynchers in Tuscaloosa, Alabama (though really it was about federal prosecution of lynchers more generally).  But right now I want to talk about his mid-term examination in his 1930-31 contracts class.  Yesterday I wrote about the New York Times article that discussed Columbia Law students' protest that Llewellyn's exam was harder than average and that suggested it might have been because he threatened to flunk a third of the class (or maybe he just said that 35% might flunk -- his  exact statement is in question).  As I said, the New York Times filled the space that abovethelaw now does of policing law schools.

I suggested that perhaps a trip to the Llewellyn papers at the University of Chicago might be in order.  I didn't think about the possibility of looking in the manuscript collections at Columbia Law.  But Sabrina Sondhi of the Columbia Law Library did -- and she sent along two mid-term exams -- one from 1930 and the other from 1931.  (His 1929 midterm is missing.)  So here they are, from the Diamond Law Library at Columbia -- probably not thought about by anyone in decades -- some Llewellyn contracts exams.  I'll let the contracts teachers here comment on them; the 1930 one looks more frightful than the 1931 one (which is I think the one in question in the New York Times article of February 1931), but I have to say that I wouldn't be all that excited about taking either of them.

Comments

[anon]

Looks like one could expect a "UCC" question from the jump.

[Michael Risch]

I don't think these look that much different from today's exams, except maybe 2(b) on the 1931 exam. I suppose students don't want to take mine either.

[[M][a][c][K]]

Someone deleted the reference to Llewelyn's Iron Cross - which I did not make but was interested to see more on.

There is this bizarre tendency to sweep under the rug possibly the most significant episode in Llewelyn's life, including a valedictory for him by a later dean of Yale that mentions obliquely that Llewelyn's rejection for service in the U.S. army without discussing why.

It is a serious issue - Llewelyn joined on an unofficial basis the imperial Army in WW I, participated in its military operations, killed Frenchmen or Englishman, was given a rank and an Iron Cross, wounded - returned to the U.S. because he was forced to as the U.S. Was entering be war - and then tried to volunteer to fight Germany. He was rejected, quite logically, as a security risk, and ever after he and his supporters treated gat rejection as an affront.

It is an very interesting story that reflects poorly on Llewelyn that in later years was quitely swept under the rug. Whoever deleted the joke continued the sweeping, as happens so often when Llewelyn's name comes up, in any context....

[[M][a][c][K]]

I wish this site had some editing function - iPads are a bad way to type and one cringes at subsequent typos.

[Al Brophy]

No one deleted the reference. The comment about the Iron Cross is on the other Llewellyn post. http://www.thefacultylounge.org/2015/06/llewellyn-in-the-new-york-times.html#comments

[[M][a][c][K]]

Llewelyn was involuntarily ejected from the German army because e was not an imperial German Citizen - and shortly thereafter the U.S. entered the war. Llewelyn had gone to some complex lengths to join the German army as he could more easily have joined the Belgien, French or British. His motivation were unclear but it seems that a certain amount of racial and political identification with Wilhelmine Germany (absurd as that may be) fueled the decision.

It is an important aspect of Llewelyn's personality and how he was perceived in the post-WW I period. His students certainly knew this stuff.

[DC]

I had thought it was a fairly inoffensive joke; I would think that in the great tradition of legal realism Llewellyn's participation on Germany would give insight into his legal arguments...

[[M][a][c][K]]

Ah, I regret my error. That it is a subject avoided though is true - and it is pretty a pretty important aspect of Llewelyn that somehow many commentators choose to a avoid.

[Al Brophy]

I don't know as scholars have brushed aside Llewellyn's war service; Twining and Natalie Hull, as I recall, both talk about it. Twining I think does a lot with it. (I'm out of the office right now, so I don't have access to those books. But that's my recollection.)

I was surprised to see that no one has written about Llewellyn's foreword to the 1933 NAACP brief on lynching -- and that's what set my off on this short project on Llewellyn and realism. It's part of a much larger project on African American intellectuals and the Civil Rights Movement pre-Brown (that's how I came across the Llewellyn foreword). That whole Jess Hollins discussion anon and I had a while back is a part of this, too.

But once I got into the Llewellyn research I realized that there are some other "unknown" Llewellyn works, including I think two in the New York Times about his experience fighting for Germany during World War I. One is a report from a Germany hospital during Christmas; I forget the exact content of the other.

Maybe I'll put up a small series of posts on Llewellyn and the New York Times, including that Sacco-Vanzetti petition. As I say, I'm surprised given how important he is to 20th century legal thought that we haven't mined every single piece of his writing -- especially for his writing on public law issues, like the NAACP. There's been some excellent work on his Sacco-Vanzetti advocacy, including Twining's reprint of Llewellyn's radio speech on their behalf.

[DC]

Appendix A to Twining's book Karl Llewellyn and the Realist Movement (most of that appendix is accessible via Google Books) contains an account of Llewellyn's wartime service and the aftermath, or at least an attempt to consolidate the different accounts into a comprehensive whole.

It gives the impression that Llewellyn saw the war as an opportunity to experience adventure mostly, and collect stories to impress people back home (which he did, until anti-German sentiment had started to grow).

[[M][a][c][K]]

DC,

By all accounts Llewelyn went to some lengths to get from the allied territory to Germany to join the German army. Had it been about adventure, there was another three armies available and as convenient. His views played a role.

[[M][a][c][K]]

To put it more simply, Llewelyn was in Paris at the outbreak of war. He was thus there for the burning of Louvain and the atrocities that took place in Belgium. Nonetheless he concluded, in Paris, that he favored the German side and travelled via Switzerland to join the German army.

There is a lot more than a mere youthful,adventure involved - and dodging the issue is far too traditional. He made an informed and appalling choice - not quite as bad as say 1939, but in 1914 few intellectuals could have had a good opinion of German conduct. It is a big topic.

[[M][a][c][K]]

Actually, he travelled from Paris via England and the Netherlands to Germany. Once in the German army he was present for the bombardment of Rheinm including its Cathedral, widely regarded even then as a disgraceful act and then went to Belgium - which was under a pretty brutal occupation and participated in the battle of Ypres.

On return to the U.S. He engaged in public lectures and general preening, slowly dropping this posture as disapproval mounted. He was then rejected for service in the U.S. Army and thought the decision unfair and unreasonable. Whatever he became, he was an interesting piece of work in 1914-18.

[DC]

[M][a][c][K]:

I was simply conveying the impression given by the work I cited, not evaluating Llewellyn's actual motive. Clearly he was sympathetic to the German cause. What he thought about, or knew about, the Belgian occupation I don't know. If he was over the border shortly after France declared war, he might have heard (and believed) the biased German account that civilians had fired on the troops at Louvain, or thought it was allied propaganda (which was certainly grew ridiculous at times during that period), or that terrible things happen in war but Germany was forced into it, etc..

Also, just to note, not only did he go to some lengths to get to Germany, but apparently even after the US successfully pressured Germany into releasing him from service he snuck to the front lines with his unit in order to fight.

[[M][a][c][K]]

The problem is that events like Louvain took place in the first weeks of the war and the Germans actually admitted it, brought U.S. journalists to see, then panicked as the backlash started. Indeed one problem is that the early 1914 atrocity stories were largely true and the Germans were not denying them until late in 1914 - perversely they thought a little fear helped their cause.

This is the problem with Llewelyn - a guest of the French at the outbreak, someone who'd been to England and Belgium - he happily made efforts to participate in the quite brutal occupations of those countries. Had he ended up in French hands frankly the French could, probably should have shot him. In 1915-16 back in the U.S. With no reason to have delusions about what Germany was doing, he helped with propaganda and boasted of his military activities.

By the way, there undoubtably was some propaganda, but atrocities by German troops were widespread, open and pretty frequent. We do not know if Llewelyn participated in any, but it seems unlikely that he was unaware when in France and Belgium of German conduct. The first place he fought was at Rheims where some of the worst acts against the French took place during 1914-15, when he was in that area of operations.

[DC]

Yes, the Germans thought that admitting to the destruction of Louvain and the slaughter of its residents would spread fear, but they tempered it with the (probably false) pretext that any killings were in response to civilians who had removed themselves from the protection of the rules of war by firing on the Germans. The "Belgian sniper" propaganda was not just aimed at enemies and neutrals, but also widely disseminated through Germany and the German army. In any event while atrocities did happen, the propaganda created by the Allies (particularly the British) was so over-the-top and at time patently ridiculous that it wasn't particularly effective, which is probably why propaganda was much less used in WW2.

This is not a total defense of Llewellyn's actions, of course. I think there pretty severe moral implications of signing up to kill people you don't know for a country to which you owe no allegiance. Certainly once back in the US he should have realized what Germany was doing. But being a perhaps over-credulous 21-year-old with an unhealthy admiration for German culture of the time does not a war criminal make.

And whatever he knew I doubt very much that he would have been in danger of summary execution if he had fallen into French hands, absent some evidence that he personally participated in the attacks. Remember, Belgium essentially WAS the Western Front; France certainly did not hold all German soldiers in the theater of war responsible for the atrocities at Louvain or the other massacre sites. If he had been French (or British) it might have been different, though who knows -- in World War II Henri Fenet (who managed to win both the Legion of Honour and the Iron Cross in the SAME WAR) only got hard labor.

[[M][@][c][K]]

The "franc tireur" propaganda was widely disseminated in the the German army prior to the start of the war. As a consequence the advancing German army shot civilians in organised public massacres, typically with neighbours and family forced to watch. This behaviour was not a secret - much of it was reported by the Richard Harding Davis, an American correspondent in Belgium, Will Irwin of Collier's magazine, by Lambertus Mokveld a Netherlands journalist (and so was extant in the very shocked and neutral Netherlands as Llewellyn made his way across to Germany. There were several US reporters present for much of this - so it was not just French and British propaganda. Indeed, Belgian refugees poured in the Netherlands, so as Llewellyn made his way to Germany, what had been happening was well known there.

The invasion started on the 4th of August, but was held up by the reduction of the fortresses of Liege. In retaliation for the resistance of the Belgians at Liege, which the Germans regarded as somehow inappropriate the German Army rounded up civilian inhabitants of surrounding villages, selected a large number and shot them, finishing off survivors with bayonets. By the 8th of August there are 850 dead civilians - and the Germans widely disseminated that these murders had taken place in an effort to intimidate. The massacres were quite public, with other neighbours and family members forced to watch - and rather stupidly neutral journalists encouraged to come see. That was in the first 4 days of the war - with Llewellyn either still in Paris, or en route to England. The Germans made open a policy of collective punishment, executing mayors and the leading citizens of villages and towns where they alleged that any resistance had taken place - and announcing the executions.

During the period when Llewellyn was planning and making his way to join the German army - the main advance after the reduction of Liege started on 18 August. There were open massacres day-after-day. Aarschot on 19 August, Andenne on 20 August, Tamines 383 civilians were murdered on 22 August, the city of Dinant on 23 August lost 10% of its civilian inhabitants 674 people; then Louvan was burned including probably the worlds most famous library (heavily a law library ironically) where another 248 civilians were killed. In another massacre 122 alleged francs-tireurs were killed in groups of 10; the last ones forced to climb on the mound of corpses to be shot - the usual crowd of family members forced to watch (and effectively hostages to force the condemned to comply.) The first French civilians were shot on 9 August.

The Germans were proud of this savagery - they built an arch in the town of Werchter to celebrate their victorious behaviour in nearby Louvain. By the end of August the massacres had quite openly taken the lives of 906 civilians in France, and 5,521 in Belgium. This was not secret, nor was it accidental - more than half the regiments in the German army participated in these murders along with the burning of towns and villages in Belgium and France. So either Llewellyn was an idiot, or he agreed with the intellectual rationale the Germans put forward justifying these massacres. He certainly went to great lengths for an opportunity to join in. Would we be so forgiving if he went to these lengths to say join ISIS today, crossing from say Turkey which is now packed with refugees as the Netherlands was in 1914?

Your analogy to Henri Fenet is rather inapposite. Fenet was a French soldier in WW I and an officer in WW II. He joined the Vichy government's Milice after the French surrender and responded to the the Vichy Government's efforts to recruit for the Waffen SS, becoming a member and commander of the Charlemagne division. He was captured by the Russians - and in many respects was lucky to only be returned to the French after the initial wave of trials - he was sentenced to 10 years hard labour, served at least 10 in a French prison after that conviction.

Perhaps more apposite were the French members of the Waffen SS Charlemagne division captured by the French during the war - who were routinely shot. Philip LeClerc had 11-12 of them summarily shot on capture on one occasion (it's worth noting that US forces after Malmedy were not noted for their gentleness to the SS either.)

[DC]

Germany certainly admitted to killing civilians, even boasted about it, but the "franc-tireur" narrative (and you seem to agree with this) was not a quick, easily-dismissed gloss thrown over it at the last minute. It was a central narrative of the German government and army through both domestic and international propaganda, and persisted in Germany for decades after the war ended. Even eyewitness accounts by Belgian citizens of Louvain corroborate that German soldiers, probably under tension due to the approaching Belgian army, truly thought they were being fired upon by the franc-tireures they'd been primed to believe lurked at the top of every building (one interesting argument I've seen is that German officers were occasionally shot at by their own men, which was then blamed on the mostly mythical francs-tieurers).

In any event there was significant skepticism over the reports from occupied Belgium, with good reason; many of the most hyperbolic reports were clearly false. American reporters were there, true -- but usually escorted by the German Army, and several of them published reports shortly after the massacres claiming they didn't happen, stories that got wide circulation in the US. It wasn't until the Bryce Report issued the following year until you saw a consensus view of the Rape of Belgium (and the Report similarly debunked a lot of the more florid propaganda you saw in August and September).

The "franc-tireur" delusion was so overwhelming and such a major factor in the conduct of the war in Belgium that it has become a subject of study itself, and even the exact nature of German atrocities and German culpability has been under debate until the recent past. It's easy to see the Germans as obviously barbaric and unjustified now, but on the ground in the field, with the fog of war, in the German army, in areas where the only official news would have been German-produced (there was an underground press in the occupied territories but I'm guessing its readership rarely included German troops).

So take Llewellyn; in Paris when war breaks out, he is sympathetic to the Germans (having spent several happy and formative years in Germany where he experienced probably the best of German intellectual culture at the time), and disgusted by French and British hyperbole regarding Germany. At some point shortly after August 4 he makes his way back to England and then to Germany through Holland where he attempts to enlist. The British propaganda at the time was patently untrustworthy -- even to a lot of Brits -- and it is doubtful he would have given it much credence, especially considering his background.

He trains with the 78th Prussian Infantry and is sent to the front near Reims which included the "firing at Reims Cathedral" according to Twining, which would mean he got there after September 12 when the Allied took Reims, but probably before November in order to give him time to spend "several weeks" there before his unit was sent to Ypres. I don't know how long he was in Germany but he underwent basic training there so it seems almost certain that he hadn't already arrived at least by late August. While there were numerous small scale massacres, the major ones didn't begin until late August, and the news mostly didn't reach Allied and neutral territory until September.

So the only news Llewellyn would have likely had access to in England when he was there were the initial, obviously false propaganda reports. By the time the reports of Louvain and the other massacre sites had reached England, he would have been ensconced in his German unit, and fed the Army propaganda.

Final note, I don't think the killed members of the Charlemagne division are more or less apposite (the only difference seems to be they were shot and he was not); I mentioned Fenet mostly because I am amused that he won the Legion of Honor and the Iron Cross in the same war. Under the rules of war at the time there would have been no cause to shoot a soldier in the opposing army simply because he was from a neutral nation.

As for comparable events

[[M][a][c][K]]

I thin you have the chronology wrong. The Germans did in fact commit most of the attrocities in the first month of the war, August 1914, and were very open about it. On some level they had a bizarre idea that neutral Belgium had committed a crime in not allowing Germany to freely cross its territory to attack France, ought given the preparations they knew the Belgians would resist. They conciderd the failure of the Belgians to simply fold as justifying the brutality, the burning of towns, the massacres (and there was some anti-Catholic aspects, hence the shooting of priests and burning of abbeys and convents.)

Only post August did the Germans start to realize that rather that helping their cause through fear, the public was an unmitigated disaster. The British had cut the telegraph cable to America and elsewhere, so the Germans had no idaa how badly their actions were playing in the U.S. - the anti-Catholic stuff and the massacres cost them the alliance with Italy, it horrified and delayed the support of the Turks, it hurt them in Scandinavia, etc. Then in September-October they started to try to contain the damage, issuing the ludicrous manifesto of German intellectuals that tried to deny that the sack of Louvain had even taken place (when you allow 4+ U.S. Journalists to observe and an Irish catholic nun from Boston, a manifesto built around denying something had taken place with so many witnesses is pretty stupid.)

Most of the atrocities took place in the first half of August, the first 2-3 weeks and were not a secret. 1/5 to 1/4 of the Belgian population had fled, mostly to the Netherlands. For Llewelyn not to have known he had to be either willfully blind or a complete cretin. I suspect willful blindness, which makes him much less of the towering moral figure than he might be portrayed as, and it probably why the WW I narrative is dodged so much.

To put it simply, Llewelyn's activities 1914-15 are a topic those who would lionize him dodge because it is hard to put a good face on them, or his activities through the end of WW I, or his subsequent narrative.

[[M][a][c][K]]

Written on an iPad - I regret the typos