Friedrich Kessler, Sterling Professor of Law, 1935-39, 1947-70

Friedrich Kessler

REFERENCES:

Christian Joerges, “Demos vs. Ethnos in Private Law: Friedrich Kessler and his German Heritage,” 104 Yale L. J.  2137 (1995).

Anthony T. Kronman, “My Senior Partner,” 104 Yale L. J. 2129 (1995).

John K. McNulty, “A Student’s Tribute to Fritz Kessler,” 104 Yale L. J. 2133 (1995).

George L. Priest, “Contracts Then and Now: An Appreciation of Friedrich Kessler,” 104 Yale L. J. 2145 (1995).

Friedrich Kessler (1901-1998) fled Nazi Germany in 1934 and came to Yale, where he remained until 1970 except for a stint at the University of Chicago Law School from 1938-47. Kessler was a self-described Legal Realist, and one of the world’s leading contracts scholars. 

Kessler described the Legal Realist’s task as “constantly testing out the desirability, efficiency and fairness of inherited legal rules and institutions in terms of the present needs of society.” “Natural Law, Justice and Democracy—Some Reflections on Three Types of Thinking About Law and Justice,” 19 Tul. L. Rev. 32, 52 (1944). Much of Kessler’s most important work consisted of “testing out” the doctrine of “freedom of contract.” 

In his celebrated article, “Contracts of Adhesion—Some Thoughts About Freedom of Contract,” 43 Colum. L. Rev. 629 (1943), Kessler maintained that Eighteenth century concepts of freedom of contract were inadequate to the realities of modern industrial economies. Through standardized contracts, he contended, parties with stronger bargaining power – in particular, large corporations – could impose their will on individuals, and courts were reluctant to give up the language of freedom of contract, even when they decided in favor of the weaker party, creating doctrinal confusion, instead of recognizing the modern contracting context and modifying the concept of freedom of contract to fit the contracting circumstances. As he put it, “freedom of contract [had become] a one-sided privilege,” exercised by powerful large-scale corporations, such that the society was experiencing a “return back from contract to status [that] was greatly facilitated by the fact that the belief in freedom of contract has remained one of the firmest axioms in the whole fabric of the social philosophy of our culture.” “Contracts of Adhesion,” at 640-41. Some commentators have ascribed Kessler’s innovative approach to contract law in relation to the modern industrial and capitalist state to his German roots, in Max Weber’s concern over the impact on the individual of the rationalization of the modern bureaucratic state, and Kessler’s own concern over untamed economic power that in early modern Germany ended in the nightmare of fascism. Along with his many articles, his casebook Contracts: Cases & Materials (1953 with Malcolm Sharp, later editions with Grant Gilmore and Anthony Kronman) helped to shape the modern debate on how courts should interpret and enforce promises, form contracts, and contracts of adhesion.