The University of New Hampshire Law Review
When scholars discuss Judge Learned Hand’s approach to contract interpretation, they refer to him as a “great formalist commercial lawyer” who was a “pure objectivist” exhibiting a “crusader’s zeal” for the objective theory of contract. He is identified as a leading advocate of the classical approach to contract interpretation, which dominated American law in the late nineteenth and early twentieth centuries. But Hand’s reputation—built from three of his opinions—clashes with his reputation as a pre-Realist critic of formalism and as an intentionalist in statutory interpretation. This Article explores just how far Hand applied a strict objective approach to contract interpretation and whether the three famous opinions responsible for his reputation portray a somewhat misleading—or at least incomplete—picture of Hand’s approach to contract interpretation. This Article concludes that while Hand did seem to exhibit a zeal for the objective theory of contract, his approach to contract interpretation was more modern than one would expect from a so-called great commercial formalist lawyer with a crusader’s zeal for the objective theory.
Daniel P. O'Gorman, Learned Hand and the Objective Theory of Contract Interpretation, 18 U.N.H. L. Rev. 63 (2019).