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.