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

[Derek Tokaz]

Based on the exam questions, I never would have come up with any of the above responses. I don't even remember discussing German history in Contracts. I thought that was all property? Or am I misremembering the desert fox hunting cases?

[DC]

(please ignore the "As for comparable events" at the end of my last post, neglected to delete it)

The Germans committed localized, small-scale atrocities during the invasion and immediately after, but the major atrocities did not happen until the second half of August and into September, starting with as German anxiety grew over the invasion timetable and anger at the (to the German) obnoxiously effective Belgian army. Word of Louvain reached Britain on or immediately before August 29; a quick search on the Times of London's digital archive shows Louvain's destruction wasn't reported until that date, and the story notes that the paper had up to that point been skeptical of the rumors of atrocities.

Llewellyn deserves moral censure for getting involved in the war in the first place, but just how much depends to some extent on where he was at the end of August when the rumors of German atrocities began to gain traction and the German government admitted to reprisals against alleged civilian partisans. I suspect he was probably already in Germany at that point, because if he had spent that much time in either Paris or London after the war had started he would probably have mentioned it. Clearly he had a lot of willful blindness; even if he was unaware of or disbelieved the stories of the atrocities, the plain invasion itself was pretty reprehensible. What I find interesting is that after the war he didn't seem to face much censure or criticism for it, and had an interested audience for his stories.

I will agree that a lot of his supporters has historically tried to whitewash his German service, whether by ignoring it, downplaying it, or completely mischaracterizing it (such as portraying it as involuntary). I don't think it's completely erased, though. I know little about Llewellyn but I did know about the German service; it's a pretty well-known story of his.

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

Dates obviously matter - Llewelyn was in Paris at the outbreak, which would be the first week of August. He then went to England - which would have taken time and been chaotic since most of the main channel ports are either in Belgium or near the Belgian frontier and would have been in use to move the Nritish Expeditionary Force forward. In England he then takes passage to the Netherlands - which by then would have been in receipt of a flood of Belgian refugees - travels through the Netherlands to Germany by train (and he said the trains were full of refugees.) We know he was at the bombardment of Rheims and then at Ypres in November. That puts him arriving in mid September at the earliest.

The most serious attrocities - and the most significant took place in August and the story of Louvain caused widespread shock - the Manifesto of the 93 was organized in response in September.

[DC]

We will just have to agree to disagree on the dates, then, and what information Llewellyn would have been exposed to. At the time you could leave Paris in the morning and reach London in late afternoon; even with the chaos of war and Belgian refugees (who Llewellyn would have had a head start on), I just can't see it taking weeks to make it to London.

If he was at Reims during the bombardment it would have meant he likely reached the front at mid-September at the earliest. But that would have been after he went through basic infantry training at Osnabruck, in Germany, which by his own account took more than a month, which would place him firmly in Germany before the massacre at Louvain even occurred.

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

According to Llewellyn (and I have yet to find an account with dates) he had considerable difficulty getting out of France. If you know your geography the Netherlands would not have been accessible except by crossing Belgium. So instead he went to England. From there, with further difficulty he made it to the Netherlands and then managed to take a train to Germany. He undertakes very basic training (so limited that he does not receive a uniform and instead takes a sergeant's jacket from a dead body and baggy Zouave also taken from a dead body (he says a french peasant, but this sounds like a French soldier.) He says he spent several weeks in Rheims that included the shelling on Rheims Cathedral (18-19 September) and then was sent to the 1st Battle of Ypres on 17 November 1914. The massacre at Dinant was the 24th of August, Louvan the 25th (three weeks after the war began) and the story was disseminated rapidly by Dutch reporters - it was out within a day or two.

It seems pretty likely that Llewelyn arrived in Germany around the beginning of September. Remember the shelling of Rheims Cathedral along with the burning of Louvain were con traverses so huge that they spurred the Manifesto of the 93 (which reads like a propaganda bureaucrat wrote it, by all accounts many who "signed it" did not see the text till it was issued. Certainly by 1915 when Llewelyn was back in the US and attending meetings to support the German cause he was well aware of both events, and as he had been in both Belgium and the region of France where the worst atrocities had taken place, really would have been hard to consider as ignorant.

And this is the fundamental problem that never seems to be addressed - this was not a youthful scrape, it was pretty serious, Llewellyn did join in a group that engaged in extra-judicial killings of civilians, such that there were post war war-crimes demands - and seems to have been 'given a pass' on it to the extent that some people thought he was hard-done-by when the US army rejected him in 1917.

Nonetheless, it is an issue that people avoid exploring in any depth, to the point that you and I are having a debate in which the only date certain is 17 November 1914, the day he was wounded. Why?

[DC]

He didn't get a uniform because there was a question whether he was even allowed to enlist; I'm pretty sure if your unit has "Prussian Infantry" in its name, it is not going to be haphazardly trained. This is from his account from early 2015:

"So I went to Germany as fast as I could get there, to volunteer in the army. I was received as a volunteer in the 78th Prussian Infantry as Osnabruck. . .While there, Ambassador Gerard, on the instance of my father, procured my discharge after six weeks."

He was in Osnabruck at least six weeks, and probably more, because he had time to then protest the ambassador's decision. Unless, of course, he's lying, but there doesn't seem any reason to because at that point he was still basking in the glory afforded him as a veteran of a war that the US was vicariously experiencing through press accounts.

To impute knowledge of the atrocities to him would seem to require to impute knowledge to every single German soldier, which you might very well argue is a legitimate position, but I just can't go there. War is chaos and confusion; there's no reason to assume that he could have known what was going on (or would have happened) just because he was in Belgium and France at the time, or to know the bodies he may have seen were innocent civilians instead of the francs-tieurers that the German soldiers were constantly warned about.

Like I said before I agree that he tends to get a pass for fighting for the clear aggressor in the war. I just don't think that unless he participated in the atrocities himself that we can impute clear knowledge to him of them.

I do agree that his biggest supporters do downplay his involvement or the moral implications involved but that could just be the fact that: (a) it happened so long ago; (b) as you note, WW1 is ethically a more ambiguous war than WW2 would become; (c) legal realism doesn't really offer much in the way of a moral or ethical vision; and (d) relatedly, Llewellyn's reputation is of a brilliant but erratic revolutionary thinker rather than some sort of moral exemplar or example of virtue. I think in the end any moral issues from his service in Germany just aren't as relevant as they would be in the case of, say, a moral philosopher or a civil rights jurist.

[anon]

ARe moral issues relevant today to someone who is held out to be a "moral philosopher"?