The bad man and the good lawyer: A centennial essay on Holmes's the path of the law

New York University Law Review

Volumn 72, Issue 6, 1997, Pages 1547-1582

  Luban, David ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 0031321758     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (134)

1. Letter from Oliver Wendell Holmes to Harold J. Laski (June 1, 1922), in 1 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935, at 430 (Mark DeWolfe Howe ed., 1953) [hereinafter Holmes-Laski Letters].
2. Oliver Wendell Holmes, Collected Legal Papers (Harold J. Laski ed., 1920) [hereinafter Collected Legal Papers].
3. Collected Legal Papers was edited and produced by Harold Laski, with a good deal of anxious kibbitzing by Holmes. See the various letters indexed under the heading, "Holmes, Mr. Justice, books: Collected Legal Papers," in 2 Holmes-Laski Letters, supra note 1, at 1581.
4. Mark DeWolfe Howe, Foreword to The Occasional Speeches of Justice Oliver Wendell Holmes at ix (Mark DeWolfe Howe ed., 1962) [hereinafter Occasional Speeches] (quoting Oliver Wendell Holmes).
5. Oliver Wendell Holmes, Law in Science and Science in Law, in Collected Legal Papers, supra note 2, at 210 [hereinafter Law in Science].
6. Oliver Wendell Holmes, The Path of the Law, in Collected Legal Papers, supra note 2, at 167 [hereinafter Path of the Law].
7. Occasional Speeches, supra note 4, at ix (quoting Oliver Wendell Holmes).
8. Richard A. Posner, Introduction to The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr. at x (Richard A. Posner ed., 1992).
9. See Robert W. Gordon, Law as a Vocation: Holmes and the Lawyer's Path, in Oliver Wendell Holmes, Jr., and The Path of the Law (Steven Burton ed., forthcoming 1998 (manuscript at 1, 13, on file with the New York University Law Review).
10. Letter from Oliver Wendell Holmes to John C. H. Wu (Mar. 26, 1925), in Justice Holmes to Doctor Wu: An Intimate Correspondence, 1921-1932, at 27, 27 (1927) [hereinafter Holmes-Wu Correspondence].
11. Letter from Oliver Wendell Holmes to Morris R. Cohen (May 27, 1917), in The Holmes-Cohen Correspondence, 9 J. Hist. Ideas 3, 10 (1948).
12. Oliver Wendell Holmes, Daniel S. Richardson (Apr. 15, 1890), in Occasional Speeches, supra note 4, at 56, 57 ("His long career is spanned by the reports . . . . It is strange to think of that monotonous series as a record of human lives . . . .").
13. Oliver Wendell Holmes, Edward Avery and Erastus Worthington (May 2, 1898), in Occasional Speeches, supra note 4, at 102, 104 [hereinafter Avery and Worthington].
14. Id.
15. Id.
16. Id.
17. The full paragraph reads: And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. Path of the Law, supra note 6, at 202.
18. In order to avoid multiplying footnotes unnecessarily, all subsequent references to The Path of the Law will appear parenthetically in the text; all will refer to the version in Collected Legal Papers, supra note 6.
19. Gordon, supra note 9 (manuscript at 48).
20. The Path of the Law was delivered at the dedication of a new building at Boston University Law School, and the dean, Melville Bigelow, had invited Holmes to address the student body. See Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes 223 (1989).
21. At the beginning of his argument for de-moralizing the law, he writes, "I wish . . . to lay down some first principles for the study of this body of dogma . . . which we call the law" (169); later he refers to "the object of our study, the operations of the law" (174). He sums up his argument for basing legal decisions on social advantage by recommending that "the training of lawyers" focus on it (184), then turns immediately to "law as a subject for study" (185). Next he launches his historical attack on unthinking traditionalism, only to conclude that it shows "the part which the study of history necessarily plays in the intelligent study of the law as it is to-day" (194). His point about Roman law is that students should skip it. When he turns to jurisprudence, he describes it as "another study," (195) and in his coda, Holmes repeats: "I have been speaking about the study of the law . . . ." (200).
22. Sheldon Novick writes that Holmes's title "is probably a conscious reference to the Tao, a term that connotes both a path to understanding and a way of life; as in Bushido, the Way of the Warrior, a term Holmes almost certainly knew." Novick, supra note 20, at 451 n.9. I am unsure on what basis Novick comes to this opinion; but the somewhat different double meaning I note in the text - path as evolutionary trajectory and path as way of life - seems closer to the surface of the English. Of course, the third meaning - path to understanding - may well be an overtone that Holmes also meant to sound.
23. See Gordon, supra note 9 (manuscript at 17).
24. See, e.g., Robert W. Gordon, Corporate Law Practice as a Public Calling, 49 Md. L. Rev. 255 (1990); David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 Vand. L. Rev. 717 (1988); William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988) [hereinafter Simon, Ethical Discretion in Lawyering]; Robert W. Gordon, Lawyers as the American Aristocracy (forthcoming 1998); William H. Simon, The Practice of Justice (forthcoming 1998) [hereinafter Simon, The Practice of Justice].
25. See, e.g., Robert W. Gordon, Corporate Law Practice as a Public Calling, 49 Md. L. Rev. 255 (1990); David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 Vand. L. Rev. 717 (1988); William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988) [hereinafter Simon, Ethical Discretion in Lawyering]; Robert W. Gordon, Lawyers as the American Aristocracy (forthcoming 1998); William H. Simon, The Practice of Justice (forthcoming 1998) [hereinafter Simon, The Practice of Justice].
26. See, e.g., Robert W. Gordon, Corporate Law Practice as a Public Calling, 49 Md. L. Rev. 255 (1990); David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 Vand. L. Rev. 717 (1988); William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988) [hereinafter Simon, Ethical Discretion in Lawyering]; Robert W. Gordon, Lawyers as the American Aristocracy (forthcoming 1998); William H. Simon, The Practice of Justice (forthcoming 1998) [hereinafter Simon, The Practice of Justice].
27. See, e.g., Robert W. Gordon, Corporate Law Practice as a Public Calling, 49 Md. L. Rev. 255 (1990); David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 Vand. L. Rev. 717 (1988); William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988) [hereinafter Simon, Ethical Discretion in Lawyering]; Robert W. Gordon, Lawyers as the American Aristocracy (forthcoming 1998); William H. Simon, The Practice of Justice (forthcoming 1998) [hereinafter Simon, The Practice of Justice].
28. See, e.g., Robert W. Gordon, Corporate Law Practice as a Public Calling, 49 Md. L. Rev. 255 (1990); David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 Vand. L. Rev. 717 (1988); William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083 (1988) [hereinafter Simon, Ethical Discretion in Lawyering]; Robert W. Gordon, Lawyers as the American Aristocracy (forthcoming 1998); William H. Simon, The Practice of Justice (forthcoming 1998) [hereinafter Simon, The Practice of Justice].
29. See Talcott Parsons, A Sociologist Looks at the Legal Profession, in Essays in Sociological Theory 370, 375, 384 (rev. ed. 1954).
30. See Simon, The Practice of Justice, supra note 24.
31. See William H. Simon, Should Lawyers Obey the Law?, 38 Wm. & Mary L. Rev. 217, 225-28 (1996); Simon, Ethical Discretion in Lawyering, supra note 24, at 1115-16.
32. See Luban, supra note 24, at 718-19, 723-25.
33. See Simon, Ethical Discretion in Lawyering, supra note 24, at 1103-13. Simon provides several examples, such as a case concerning a lawyer whose client is subject under law to a flat reduction in her public assistance benefits because she lives rent-free with a relative, but who can avoid the reduction if she makes a nominal payment to the relative. According to Simon, the lawyer, in deciding whether or not to counsel her client to make the payment, should determine whether there is a clear regulatory purpose to preclude such "financial planning" by examining the plain language of the regulation, the background case law, and the legislative history, as well as by weighing any fundamental interests of justice the lawyer identifies as not sufficiently addressed by the law. See id. at 1106-07. The more ambiguous the purpose of the regulation, the more appropriate it is for the lawyer to advise only formal compliance (a form of resistance), i.e., that the client make the nominal payment and avoid the benefit reduction. See id. at 1107.
34. Holmes argues these points more fully in Law in Science, supra note 5, at 225-29.
35. Oliver Wendell Holmes, Law and the Court, in Collected Legal Papers, supra note 2, at 291, 294.
36. Id. at 295.
37. Law in Science, supra note 5, at 220-21.
38. Oliver Wendell Holmes, Twenty Years in Retrospect (Dec. 3, 1902), in Occasional Speeches, supra note 4, at 154, 156.
39. Law in Science, supra note 5, at 220.
40. Oliver Wendell Holmes, Natural Law, in Collected Legal Papers, supra note 2, at 310, 310 [hereinafter Natural Law].
41. Oliver Wendell Holmes, Admiral Dewey (Oct. 14, 1899), in Occasional Speeches, supra note 4, at 109, 109 [hereinafter Admiral Dewey].
42. I'm being a little loose on the law of war here. Article 8 of the 1907 Hague Convention stipulated that POWs "shall be subject to the laws, regulations, and orders in force in the army of the State in whose power they are." Hague Convention of 1907, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Annex, § I, ch. II, art. 8, 36 Stat. 2277, 2297-98. They could be disciplined if they were recaptured trying to escape, but not if they successfully escaped and were subsequently recaptured. See id. However, the 1949 Geneva Convention allows only disciplinary punishment (a mild and nonphysical form of order-keeping punishment) for unsuccessful escapees and no punishment for successful escapees who are eventually recaptured. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, arts. 91-92, 6 U.S.T. 3116, 3388, 75 U.N.T.S. 135, 206. In my view, both documents treat attempted escape as a morally nonculpable offense; otherwise it would be hard to explain why both forbid punishment of a successful escapee who falls into enemy hands a second time.
43. Mark DeWolfe Howe, 2 Justice Oliver Wendell Holmes: The Proving Years, 1870-1882, at 110 (1963).
44. Law in Science, supra note 5, at 212.
45. Id. at 237.
46. See, e.g., Oliver Wendell Holmes, Agency II, in Collected Legal Papers, supra note 2, at 81, 89-92.
47. Oliver Wendell Holmes, Agency I, in Collected Legal Papers, supra note 2, at 49, 50.
48. Oliver Wendell Holmes, George Otis Shattuck (May 29, 1897), in Occasional Speeches, supra note 4, at 92, 94 [hereinafter Shattuck].
49. Avery and Worthington, supra note 13, at 104-05.
50. Oliver Wendell Holmes, The Soldier's Faith (May 30, 1895), in Occasional Speeches, supra note 4, at 73, 76.
51. Shattuck, supra note 44, at 93.
52. Oliver Wendell Holmes, The Profession of the Law (Feb. 17, 1886), in Occasional Speeches, supra note 4, at 28, 28 [hereinafter Profession].
53. Oliver Wendell Holmes, Speech at Dinner Given by the Bar Association of Boston (Mar. 7, 1900), in Occasional Speeches, supra note 4, at 122, 125; see also Letter from Oliver Wendell Holmes to John Wu (Mar. 26, 1925), in Holmes-Wu Correspondence, supra note 10, at 27 ("I thought the true view [of the necessary foundation for a noble life] was that of my imaginary society of the jobbists, who were free to be egotists or altruists on the usual Saturday half holiday provided they were neither while on their job.").
54. See, e.g., Oliver Wendell Holmes, Remarks to the Essex Bar, in Occasional Speeches, supra note 4, at 48, 49: You argue a case in Essex. And what has the world outside to do with that, you say. Yet you have confirmed or modified or perhaps have suggested for the first time a principle which will find its way into the reports and from the reports into the text-books and so into the thought of the common law, and so into its share in governing the conduct of civilized men. Our every act rings through the whole world of being. Id.; Oliver Wendell Holmes, Sidney Bartlett (Mar. 23, 1889), in Occasional Speeches, supra note 4, at 53-54 [hereinafter Sidney Bartlett] ("The external and immediate result of an advocate's work is but to win or lose a case. But remotely what the lawyer does is to establish, develop, or illuminate rules which are to govern the conduct of men for centuries . . . ."); Oliver Wendell Holmes, Daniel Richardson (Apr. 15, 1890), in Occasional Speeches, supra note 4, at 56, 57-58: The glory of lawyers, like that of men of science, is more corporate than individual. Our labor is an endless organic process. The organism whose being is recorded and protected by the law is the undying body of society. When I hear that one of the builders has ceased his toil, I do not ask what statue he has placed upon some conspicuous pedestal, but I think of the mighty whole, and say to myself, He has done his part to help the mysterious growth of the world along its inevitable lines towards its unknown end. Id.; Oliver Wendell Holmes, Anonymity and Achievement (June 3, 1890), in Occasional Speeches, supra note 4, at 59, 59-61: The greater part of the work of the world is anonymous work; the greatest displays of intellect, force of character, and power of divination are shown, for the most part, in connection with private interests and are known to few beyond those immediately concerned. . . . We lawyers may take courage then. We are shaping the future, even if the future undoes all that we do. . . . Everything tells in its due proportion, in the organic processes of social growth. Id.; Shattuck, supra note 44, at 96 ("[T]he heads and hands that built the organic structure of society are forgotten from the speech of their fellows, and live only in the tissue of their work. . . . What we have done is woven forever into the great vibrating web of the world.").
55. Shattuck, supra note 44, at 96.
56. Letter from Oliver Wendell Holmes to Harold J. Laski (Nov. 17, 1920), in 1 Holmes-Laski Letters, supra note 1, at 290, 291.
57. Oliver Wendell Holmes, A Provisional Adieu (Nov. 14, 1902), in Occasional Speeches, supra note 4, at 150, 152.
58. Id.
59. Profession, supra note 48, at 29. Likewise this passage from his Brown commencement address: "One doubted oneself how [law] could be worthy of the interest of an intelligent mind. And yet one said to oneself, Law is human - it is part of man, and of one world with all the rest." Oliver Wendell Holmes, Commencement Address (June 17, 1897), in Occasional Speeches, supra note 4, at 97, 98.
60. Profession, supra note 48, at 28.
61. Sidney Bartlett, supra note 50, at 54.
62. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self 130 (1993) (quoting letter from Holmes to James Bryce (Aug. 17, 1879)).
63. Id.
64. Letter from Oliver Wendell Holmes to Felix Frankfurter (July 15, 1913), in Holmes and Frankfurter: Their Correspondence, 1912-1934, at 12, 12 (Robert M. Mennel & Christine L. Compston eds., 1996).
65. Law in Science, supra note 5, at 224; see also Holmes, Shattuck, supra note 44, at 95 ("It is one thing to utter a happy phrase from a protected cloister; another to think under fire - to think for action upon which great interests depend.").
66. Oliver Wendell Holmes, The Use of Colleges, in Occasional Speeches, supra note 4, at 62, 62-63.
67. See id. at 63. At least twice Holmes quoted a Cambridge mathematician who boasted of one of his theorems, "The best of it all is that it can never by any possibility be made of the slightest use to anybody for anything." Law in Science, supra note 5, at 211; see also Oliver Wendell Holmes, Rudolph C. Lehmann, in Occasional Speeches, supra note 4, at 90, 91 (praising the same "Cambridge don"). A later Cambridge mathematician, G. H. Hardy, made this the theme of one of the books that most affected me in my undergraduate days. See G.H. Hardy, A Mathematician's Apology (1969). At that time I heard the French mathematician Dieudonné make a similar boast, without realizing that he had probably lifted it from Holmes's anonymous mathematician. Oddly enough, I quoted Dieudonné in an earlier paper of mine, which I wrote before knowing these two passages in Holmes. See David Luban, Doubts About the New Pragmatism, in Legal Modernism 125, 143 (1994).
68. See id. at 63. At least twice Holmes quoted a Cambridge mathematician who boasted of one of his theorems, "The best of it all is that it can never by any possibility be made of the slightest use to anybody for anything." Law in Science, supra note 5, at 211; see also Oliver Wendell Holmes, Rudolph C. Lehmann, in Occasional Speeches, supra note 4, at 90, 91 (praising the same "Cambridge don"). A later Cambridge mathematician, G. H. Hardy, made this the theme of one of the books that most affected me in my undergraduate days. See G.H. Hardy, A Mathematician's Apology (1969). At that time I heard the French mathematician Dieudonné make a similar boast, without realizing that he had probably lifted it from Holmes's anonymous mathematician. Oddly enough, I quoted Dieudonné in an earlier paper of mine, which I wrote before knowing these two passages in Holmes. See David Luban, Doubts About the New Pragmatism, in Legal Modernism 125, 143 (1994).
69. Law in Science, supra note 5, at 224.
70. Profession, supra note 48, at 29.
71. See, e.g., text accompanying notes 58-59.
72. See Gordon, supra note 9 (manuscript at 26-27). Gordon rightly finds an affinity between Holmes's views and Max Weber's, as expressed in the latter's defense of scientific asceticism in Science as a Vocation and of political hardball in Politics as a Vocation. See From Max Weber: Essays in Sociology 77, 129 (H.H. Gerth & C. Wright Mills, eds. and trans., 1946) (reprinting both essays). I think the comparison goes further still: if Holmes was a mess over what it is to be a thinker, Weber was a worse mess. Karl Jaspers offers the following recollection: [S]hortly after the publication of [Science as a Vocation] Max Weber, Thoma (a jurist), and I sat talking together one Sunday afternoon in the garden of the lovely house on the Ziegelhäuser-Landstrasse. Weber's talk, which had caused a great stir at the time, was of course the main topic of conversation. This talk was tough, implacable, and moving. I said something to this effect: You say nothing about the meaning of scholarship. If it is no more than what you say it is, then why do you bother with it? I spoke about Kant's "ideas" and said that every branch of science and scholarship acquires a meaning that goes beyond scholarship only by virtue of an idea. Max Weber knew next to nothing about Kantian ideas and did not respond. Finally, I said, turning to Thoma: "He doesn't know himself what meaning scholarship has and why he engages in it." Max Weber winced visibly: "Well, if you insist: to see what one can endure, but it is better not to talk of such things." Letter from Karl Jaspers to Hannah Arendt (Nov. 16, 1966), in Hannah Arendt-Karl Jaspers Correspondence 1926-1969, at 660, 660-61 (Lotte Kohler & Hans Saner eds., Robert Kimber & Rita Kimber trans., 1992).
73. See Gordon, supra note 9 (manuscript at 26-27). Gordon rightly finds an affinity between Holmes's views and Max Weber's, as expressed in the latter's defense of scientific asceticism in Science as a Vocation and of political hardball in Politics as a Vocation. See From Max Weber: Essays in Sociology 77, 129 (H.H. Gerth & C. Wright Mills, eds. and trans., 1946) (reprinting both essays). I think the comparison goes further still: if Holmes was a mess over what it is to be a thinker, Weber was a worse mess. Karl Jaspers offers the following recollection: [S]hortly after the publication of [Science as a Vocation] Max Weber, Thoma (a jurist), and I sat talking together one Sunday afternoon in the garden of the lovely house on the Ziegelhäuser-Landstrasse. Weber's talk, which had caused a great stir at the time, was of course the main topic of conversation. This talk was tough, implacable, and moving. I said something to this effect: You say nothing about the meaning of scholarship. If it is no more than what you say it is, then why do you bother with it? I spoke about Kant's "ideas" and said that every branch of science and scholarship acquires a meaning that goes beyond scholarship only by virtue of an idea. Max Weber knew next to nothing about Kantian ideas and did not respond. Finally, I said, turning to Thoma: "He doesn't know himself what meaning scholarship has and why he engages in it." Max Weber winced visibly: "Well, if you insist: to see what one can endure, but it is better not to talk of such things." Letter from Karl Jaspers to Hannah Arendt (Nov. 16, 1966), in Hannah Arendt-Karl Jaspers Correspondence 1926-1969, at 660, 660-61 (Lotte Kohler & Hans Saner eds., Robert Kimber & Rita Kimber trans., 1992).
74. Yosal Rogat, The Judge as Spectator, 31 U. Chi. L. Rev. 213, 228-33 (1964).
75. See id. at 228 (stating that Holmes's withdrawal can "best be answered by comparing Holmes with [Adams and James], who were also 'set apart' [from other men]").
76. See id. at 243.
77. See, e.g., Letter from Oliver Wendell Holmes to John Wu (May 5, 1926), in Holmes-Wu Correspondence, supra note 10, at 34, 35 ("I suspect that all my ultimates have the mark of the finite upon them, but as they are the best I know I give them practical respect, love, etc., but inwardly doubt whether they have any importance except for us . . . ."); Natural Law, supra note 36, at 310, 314 ("I see . . . no basis for a philosophy that tells us what we should want to want.").
78. See David Luban, Justice Holmes and the Metaphysics of Judicial Restraint, 44 Duke L.J. 449, 479-81 (1994).
79. Oliver Wendell Holmes, Despondency and Hope (Oct. 21, 1902), in Occasional Speeches, supra note 4, at 146, 148.
80. U.S. Attorney General Richard Thornburgh, Address at the University of Iowa Conference, The Path of the Law in the 20th Century (Jan. 20, 1997) [hereinafter Iowa Conference].
81. Catherine Wells, Address at the Iowa Conference (Jan. 21, 1997), supra note 74.
82. Sanford Levinson, Address at the Iowa Conference (Jan. 21, 1997), supra note 74.
83. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958).
84. See id. at 629 ("To use in the description of the interpretation of laws, the suggested terminology of a fusion or inability to separate what is law and ought to be will serve . . . only to conceal the facts, that here if anywhere we live among uncertainties between which we have to choose . . . .").
85. See id. at 620 ("[L]aws may be law but too evil to be obeyed.").
86. See id. at 618-21 (discussing this position in context of post-World War II prosecution of Nazi informers).
87. See supra notes 75-76 and accompanying text.
88. Ch. 60, 9 Stat. 462 (1850), repealed by ch. 166, 13 Stat. 200 (1864).
89. But sometimes the natural lawyer bites back, as in Fuller's devastating criticisms of positivism and realism, couched in language as strong as Holmes's. See Lon L. Fuller, Lecture II, in The Law in Quest of Itself 43 (1940). Fuller shows that positivism and realism rely on unrealistic abstractions and occult entities - ironically, exactly the charge that their adherents usually level at natural law theories.
90. See supra text accompanying note 74.
91. Letter from Oliver Wendell Holmes to Lewis Einstein (May 21, 1914), in The Holmes-Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein, 1903-1935, at 92, 93 (James Bishop Peabody ed., 1964) [hereinafter Holmes-Einstein Letters].
92. Path of the Law, supra note 6, at 173.
93. Admiral Dewey, supra note 37, at 109.
94. Hart, supra note 77, at 603.
95. In contemporary parlance, Holmes is arguing that a law creates a genuine duty when it is enforced through a property rule rather than a liability rule. In this respect, Holmes's position in Path has not changed from his early view that when a legislature has an "absolute wish" to prohibit conduct, the legal norm it creates is categorical, and the penalty attached cannot be regarded as a tax. See Oliver Wendell Holmes, Book Notices, in The Formative Essays of Justice Holmes 91, 92-93 (Frederic R. Kellogg ed., 1984) (arguing that duty is more than just a tax on certain conduct - a "legal duty cannot be said to exist if the law intends to allow the person supposed to be subject to it an option at a certain price").
96. Holmes expresses a similar idea using similar imagery in a letter to Lewis Einstein, where he writes: [I]f we have got to hate anything, I don't see why we mightn't as well invert the Christian saying and hate the sinner but not the sin. . . . The world has produced the rattlesnake as well as me; but I kill it if I get a chance, as also mosquitoes, cockroaches, murderers, and flies. Holmes-Einstein Letters, supra note 85, at 93. Notice that murderers appear in the middle of Holmes's list, between cockroaches and flies.
97. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169 (1968).
98. Here I am following the contemporary view that identifies the meaning - the semantics - of an expression with the sum total of the inference-relations it enters into. On this view, synonymy is a matter of degree - two expressions that share most but not all of their inference-relations (or analogous inference-relations) have similar meanings, and the fewer the shared inferences, the more dissimilar the meanings. If the two expressions are uses of the selfsame ideograph, then in the former case it makes sense to refer to them as alternative meanings of the same word, while in the latter case they are mere homonyms.
99. Similar examples are ubiquitous in language. See J. F. Ross, Portraying Analogy 4-5 (1981) (using as examples see/light, see/point; collect/books, collect/friends, collect/debts, collect/barnacles; make a sandwich, make a bed, make a mistake, make time for, make a plane, make an appointment).
100. In arguing this, I am assuming that the level of punitive awards is determined on largely retributive grounds and certainly not solely on deterrence grounds. This, I believe, correctly states the doctrine and practice of punitive damages. For details, see Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 Am. U. L. Rev. 1393, 1432-38, 1448-51 (1993) (arguing that punitive damages are based not on theory of effective deterrence but rather on theory of retribution, in which punishment is measured according to heinousness of crime, and that purpose of retribution is to inflict "expressive defeats" (i.e., "poetic justice") on wrongdoer).
101. See, e.g., Oliver Wendell Holmes, Ideals and Doubts, in Collected Legal Papers, supra note 2, at 303, 304.
102. Immanuel Kant, Perpetual Peace: A Philosophical Sketch, in Political Writings 93, 112 (Hans S. Reiss ed. & H.B. Nisbet trans., 1970); see also Thomas W. Pogge, Kant's Theory of Justice, 79 Kant-Studien 407, 410 (1988) (claiming that Kant's theory of justice makes little use of categorical imperative and yields set of duties aiming "to secure the external freedom of others" rather than focusing on agent's inner freedom).
103. Immanuel Kant, Perpetual Peace: A Philosophical Sketch, in Political Writings 93, 112 (Hans S. Reiss ed. & H.B. Nisbet trans., 1970); see also Thomas W. Pogge, Kant's Theory of Justice, 79 Kant-Studien 407, 410 (1988) (claiming that Kant's theory of justice makes little use of categorical imperative and yields set of duties aiming "to secure the external freedom of others" rather than focusing on agent's inner freedom).
104. See text accompanying note 96.
105. Gordon, supra note 9 (manuscript at 17).
106. 29 U.S.C. §§ 651-678 (1994 & Supp. 1995).
107. See Kathleen F. Brickey, Corporate and White Collar Crime: Cases and Materials 702 n.24 (2d ed. 1995) (citing Kenneth B. Noble, Work Safety Agency Never Checked Fatal Factory, N.Y. Times, June 27, 1985, at 16).
108. See Kathleen F. Brickey, Corporate and White Collar Crime: Cases and Materials 702 n.24 (2d ed. 1995) (citing Kenneth B. Noble, Work Safety Agency Never Checked Fatal Factory, N.Y. Times, June 27, 1985, at 16).
109. See Salwasser Mfg. Co. v. Municipal Court, 156 Cal. Rptr. 292, 296 (Ct. App. 1979) (holding that warrantless nonconsensual Occupational Safety and Health Act (OSHA) inspection violates Fourth Amendment).
110. See Gordon, supra note 9 (manuscript at 19).
111. Admiral Dewey, supra note 37, at 109.
112. Fuller, supra note 83, at 53-55.
113. See id. at 27-28.
114. Hans Kelsen, Pure Theory of Law (Max White trans., 1967); see Fuller, supra note 83, at 69-70.
115. See H.L.A. Hart, The Concept of Law 92-93 (1961) (defining "rule of recognition"). Of course, it is my claim, not Fuller's, that the rule of recognition is a conceptual fiction rather than an empirical reality: Hart was writing two decades after Fuller. My basis for the claim is that even though Hart insists on "the essentially factual character" of the rule of recognition, id. at 106, he also concludes that "there are certainly situations in which questions as to the precise content and scope of this kind of rule, and even as to its existence, may not admit of a clear or determinate answer." Id. I believe that in real-life legal systems, with complex and divided authority, the "precise content and scope," id., of the rule of recognition is always indeterminate - and that is another way of saying that the very notion of a rule of recognition is a conceptual placeholder and thus a conceptual fiction.
116. See Fuller, supra note 83, at 45-47.
117. See David Luban, Lawyers and Justice: An Ethical Study 20-24 (1988); David Luban, Fish v. Fish: Some Realism About Idealism, 7 Cardozo L. Rev. 693, 698-700 (1986); David Luban, Lawyers Rule: A Comment on Patterson's Theories of Truth, 50 SMU L. Rev. 1613, 1623 (1997); David Luban, What's Pragmatic About Legal Pragmatism?, 18 Cardozo L. Rev. 43, 68-69 (1996).
118. See David Luban, Lawyers and Justice: An Ethical Study 20-24 (1988); David Luban, Fish v. Fish: Some Realism About Idealism, 7 Cardozo L. Rev. 693, 698-700 (1986); David Luban, Lawyers Rule: A Comment on Patterson's Theories of Truth, 50 SMU L. Rev. 1613, 1623 (1997); David Luban, What's Pragmatic About Legal Pragmatism?, 18 Cardozo L. Rev. 43, 68-69 (1996).
119. See David Luban, Lawyers and Justice: An Ethical Study 20-24 (1988); David Luban, Fish v. Fish: Some Realism About Idealism, 7 Cardozo L. Rev. 693, 698-700 (1986); David Luban, Lawyers Rule: A Comment on Patterson's Theories of Truth, 50 SMU L. Rev. 1613, 1623 (1997); David Luban, What's Pragmatic About Legal Pragmatism?, 18 Cardozo L. Rev. 43, 68-69 (1996).
120. See David Luban, Lawyers and Justice: An Ethical Study 20-24 (1988); David Luban, Fish v. Fish: Some Realism About Idealism, 7 Cardozo L. Rev. 693, 698-700 (1986); David Luban, Lawyers Rule: A Comment on Patterson's Theories of Truth, 50 SMU L. Rev. 1613, 1623 (1997); David Luban, What's Pragmatic About Legal Pragmatism?, 18 Cardozo L. Rev. 43, 68-69 (1996).
121. Robert S. Summers, Instrumentalism and American Legal Theory 101-15 (1982) (analyzing process by which law becomes "valid").
122. See Rogat, supra note 68, at 248-49 (stating that Holmes's "law as prediction" remarks did not apply to his concept of functions of judge).
123. Hart, supra note 107, at 10 (discounting prediction theory in context of judicial decisions relating to punishment).
124. See Fuller, supra note 83, at 94-95 (discounting prediction theory in context of judicial decisions relating to punishment).
125. Felix S. Cohen, The Problems of a Functional Jurisprudence, 1 Mod. L. Rev. 5, 17 (1937).
126. A few lines further, Holmes suggests that treatises and statutes exist principally to make the case law easier to remember, see The Path of the Law, supra note 6, at 168, so we may restrict our attention to the reports of judicial decisions.
127. Oliver Wendell Holmes, Jr., The Common Law 31-32 (Mark DeWolfe Howe ed., 1963).
128. I've argued this in some detail in my article, Justice Holmes and the Metaphysics of Judicial Restraint. See Luban, supra note 72, at 496-501.
129. Oliver Wendell Holmes, William Crowninshield Endicott (Nov. 24, 1900), in Occasional Speeches, supra note 4, at 127, 128.
130. Oliver Wendell Holmes, The Bar as a Profession, in Collected Legal Papers, supra note 2, at 153, 153.
131. Gordon, supra note 9 (manuscript at 18).
132. Id.
133. See, e.g., John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1367-84 (1995) (exposing abundant room for potential collusion by settlement class plaintiffs' attorneys); Susan P. Koniak, Feasting While the Widow Weeps: Georgine v. Amchem Products, Inc., 80 Cornell L. Rev. 1045, 1051-85 (1995) (discussing allegations of collusion by plaintiffs' lawyers in Georgine, 157 F.R.D. 246 (E.D. Pa. 1994)).
134. See, e.g., John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1367-84 (1995) (exposing abundant room for potential collusion by settlement class plaintiffs' attorneys); Susan P. Koniak, Feasting While the Widow Weeps: Georgine v. Amchem Products, Inc., 80 Cornell L. Rev. 1045, 1051-85 (1995) (discussing allegations of collusion by plaintiffs' lawyers in Georgine, 157 F.R.D. 246 (E.D. Pa. 1994)).