Holmes's path

Boston University Law Review

Volumn 77, Issue 3, 1997, Pages 515-558

  Seipp, David J ^a  

^a NONE

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EID: 0031503279     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (393)

1. Holmes did not give any title to the speech in its initial printing. See infra note 2 and text accompanying note 239. He described it in several different ways in his letters, see infra text accompanying notes 240-42, and published it under a different title in Scotland, see infra note 5.
2. Holmes did not give any title to the speech in its initial printing. See infra note 2 and text accompanying note 239. He described it in several different ways in his letters, see infra text accompanying notes 240-42, and published it under a different title in Scotland, see infra note 5.
3. Holmes did not give any title to the speech in its initial printing. See infra note 2 and text accompanying note 239. He described it in several different ways in his letters, see infra text accompanying notes 240-42, and published it under a different title in Scotland, see infra note 5.
4. OLIVER WENDELL HOLMES, ADDRESS DELIVERED AT THE DEDICATION OF THE NEW HALL OF THE BOSTON UNIVERSITY SCHOOL OF LAW, JANUARY 8, 1897 (Boston 1897) [hereinafter Pamphlet].
5. Oliver Wendell Holmes, The Path of the Law, 1 BOSTON L. SCH. MAG., Feb. 1897, at 1 [hereinafter BLSM].
6. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897) (issue dated Mar. 25, 1897) [hereinafter HLR].
7. [Oliver Wendell Holmes,] Law and the Study of Law, 9 JURIDICAL REV. 105 (1897) (published anonymously).
8. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167 (1920) [hereinafter CLP].
9. See infra text accompanying notes 264-65.
10. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 253-60 (1930) (discussing the influence of Holmes's speech on legal realists); Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 818 (1989) (same): Morton J. Horwitz, The Place of Justice Holmes in American Legal Thought, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 31, 53 (Robert W. Gordon ed., 1992) (stating that Holmes's speech was the "original inspiration" for Wesley Hohfeld's 1913 article challenging the natural rights foundation of American law); Richard Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1042-43 (1997) (stating that Holmes's speech foresaw, inter alia, the rise of economics in law and broader interdisciplinary transformations of legal scholarship).
11. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 253-60 (1930) (discussing the influence of Holmes's speech on legal realists); Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 818 (1989) (same): Morton J. Horwitz, The Place of Justice Holmes in American Legal Thought, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 31, 53 (Robert W. Gordon ed., 1992) (stating that Holmes's speech was the "original inspiration" for Wesley Hohfeld's 1913 article challenging the natural rights foundation of American law); Richard Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1042-43 (1997) (stating that Holmes's speech foresaw, inter alia, the rise of economics in law and broader interdisciplinary transformations of legal scholarship).
12. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 253-60 (1930) (discussing the influence of Holmes's speech on legal realists); Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 818 (1989) (same): Morton J. Horwitz, The Place of Justice Holmes in American Legal Thought, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 31, 53 (Robert W. Gordon ed., 1992) (stating that Holmes's speech was the "original inspiration" for Wesley Hohfeld's 1913 article challenging the natural rights foundation of American law); Richard Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1042-43 (1997) (stating that Holmes's speech foresaw, inter alia, the rise of economics in law and broader interdisciplinary transformations of legal scholarship).
13. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 253-60 (1930) (discussing the influence of Holmes's speech on legal realists); Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 818 (1989) (same): Morton J. Horwitz, The Place of Justice Holmes in American Legal Thought, in THE LEGACY OF OLIVER WENDELL HOLMES, JR. 31, 53 (Robert W. Gordon ed., 1992) (stating that Holmes's speech was the "original inspiration" for Wesley Hohfeld's 1913 article challenging the natural rights foundation of American law); Richard Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1042-43 (1997) (stating that Holmes's speech foresaw, inter alia, the rise of economics in law and broader interdisciplinary transformations of legal scholarship).
14. Pamphlet at 3-4, BLSM at 1-2, HLR at 458-59, CLP at 167-69.
15. Pamphlet at 5-8, BLSM at 2-4, HLR at 459-61, CLP at 170-73.
16. Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175. Holmes was disregarding, of course, the remedy of specific performance. See infra text accompanying notes 83, 90-91.
17. Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175. Holmes was disregarding, of course, the remedy of specific performance. See infra text accompanying notes 83, 90-91.
18. Pamphlet at 12-14, BLSM at 7-8, HLR at 465-66, CLP at 180-82.
19. Pamphlet at 17-18, BLSM at 10-11, HLR at 469, CLP at 186-87.
20. Pamphlet at 13, BLSM at 8, HLR at 466, CLP at 181.
21. Pamphlet at 18, 24, BLSM at 11, 15, HLR at 469, 474, CLP at 187, 195.
22. Many of the themes in Holmes's speech are traced through his writings in Thomas A. Reed, Holmes and the Paths of the Law, 37 L. & HIST. REV. 273 (1993).
23. [Oliver Wendell Holmes,] Book Review, 14 AM L. REV. 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (2d ed. 1879)); OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Boston, Little, Brown, & Co. 1881).
24. [Oliver Wendell Holmes,] Book Review, 14 AM L. REV. 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (2d ed. 1879)); OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Boston, Little, Brown, & Co. 1881).
25. [Oliver Wendell Holmes,] Book Review, 14 AM L. REV. 233-35 (1880) (reviewing C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS (2d ed. 1879)); OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Boston, Little, Brown, & Co. 1881).
26. [Oliver Wendell Holmes,] Book Notice, 6 AM. L. REV. 723-24 (1872) (reviewing The Law Magazine and Review for April 1872); see M.H. Fisch, Justice Holmes, the Prediction Theory of Law, and Pragmatism, 39 J. OF PHIL. 85, 92-94 (1942).
27. [Oliver Wendell Holmes,] Book Notice, 6 AM. L. REV. 723-24 (1872) (reviewing The Law Magazine and Review for April 1872); see M.H. Fisch, Justice Holmes, the Prediction Theory of Law, and Pragmatism, 39 J. OF PHIL. 85, 92-94 (1942).
28. [Oliver Wendell Holmes,] Book Notice, 6 AM. L. REV. 723-24 (1872) (reviewing The Law Magazine and Review for April 1872); see M.H. Fisch, Justice Holmes, the Prediction Theory of Law, and Pragmatism, 39 J. OF PHIL. 85, 92-94 (1942).
29. The nearest approach to the "bad man" in Holmes's previous writings is a sentence he wrote in 1881 on conditions precedent in contracts - hypothesizing "one who had no scruples." See infra text accompanying note 70.
30. SHELDON M. NOVICK, HONORABLE JUSTICE: THE LIFE OF OLIVER WENDELL HOLMES 178, 183, 186 (1989).
31. G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 9-14 (1993).
32. Id. at 465-66 (noting Holmes, at ninety years of age, still competing with his father), 483.
33. See OLIVER WENDELL HOLMES, THE AUTOCRAT OF THE BREAKFAST-TABLE: EVERY MAN HIS OWN BOSWELL (1858); THE PROFESSOR AT THE BREAKFAST-TABLE (1860); THE POET AT THE BREAKFAST-TABLE (1872); OVER THE TEACUPS (1891).
34. See OLIVER WENDELL HOLMES, THE AUTOCRAT OF THE BREAKFAST-TABLE: EVERY MAN HIS OWN BOSWELL (1858); THE PROFESSOR AT THE BREAKFAST-TABLE (1860); THE POET AT THE BREAKFAST-TABLE (1872); OVER THE TEACUPS (1891).
35. See OLIVER WENDELL HOLMES, THE AUTOCRAT OF THE BREAKFAST-TABLE: EVERY MAN HIS OWN BOSWELL (1858); THE PROFESSOR AT THE BREAKFAST-TABLE (1860); THE POET AT THE BREAKFAST-TABLE (1872); OVER THE TEACUPS (1891).
36. See OLIVER WENDELL HOLMES, THE AUTOCRAT OF THE BREAKFAST-TABLE: EVERY MAN HIS OWN BOSWELL (1858); THE PROFESSOR AT THE BREAKFAST-TABLE (1860); THE POET AT THE BREAKFAST-TABLE (1872); OVER THE TEACUPS (1891).
37. Oliver Wendell Holmes, My Hunt After "The Captain." 10 ATLANTIC MONTHLY 738 (1862).
38. Pamphlet at 16-17, BLSM at 10, HLR at 468, CLP at 185.
39. Pamphlet at 19, BLSM at 11, HLR at 470, CLP at 188.
40. Letter from Oliver Wendell Holmes to Clara Stevens (July 26, 1914), in WHITE, supra note 21, at 15.
41. LIVA BAKER, THE JUSTICE FROM BEACON HILL 354 (1991).
42. Kill the Wolf!, BOSTON POST, Jan. 9, 1897, at 1.
43. OLIVER WENDELL HOLMES, The Soldier's Faith, in SPEECHES 56 (1913).
44. Id. at 57.
45. Id. at 58, 59.
46. Id. at 59.
47. Id. at 62, 64.
48. Holmes wrote two very snippy letters to the magazine's editor. Letters from Oliver Wendell Holmes to William R. Thayer (Aug. 29, 1895), (Aug. 31, 1895). Unless otherwise noted, all correspondence cited in this Essay can be found on file with the Boston University Law Review.
49. Holmes wrote two very snippy letters to the magazine's editor. Letters from Oliver Wendell Holmes to William R. Thayer (Aug. 29, 1895), (Aug. 31, 1895). Unless otherwise noted, all correspondence cited in this Essay can be found on file with the Boston University Law Review.
50. Oliver Wendell Holmes, The Soldier's Faith, 4 HARV. GRADUATES' MAG. 179 (Dec. 1895).
51. [Wendell Garrison,] Sentimental Jingoism, N.Y. EVENING POST, Dec. 16, 1895, reprinted in 61 NATION 440 (Dec. 19, 1895).
52. Letter from Oliver Wendell Holmes to Frederick Pollock (Dec. 27, 1895), in 1 HOLMES-POLLOCK LETTERS 66, 67 (Mark DeWolfe Howe ed., 1941).
53. Letter from Theodore Roosevelt to Henry Cabot Lodge (1895), in SILAS BENT, JUSTICE OLIVER WENDELL HOLMES: A BIOGRAPHY 250 (1932).
54. Letter from William Sturgis Bigelow to Oliver Wendell Holmes (undated). Bigelow, a mutual friend, offered Holmes a dinner with Roosevelt. See WHITE, supra note 21, at 84. Edward Avery Harriman, a young contracts scholar who corresponded with Holmes, see infra text accompanying notes 66-89, wrote to his old teacher Melville Madison Bigelow, a longtime friend of Holmes, at the outset of the Spanish-American War, "Civilization . . . has not succeeded in abolishing the barbarous desire for personal combat. It is curious to read the gushing essays of a man like Theodore Roosevelt, or the defence of war by Mr. Justice Holmes." Letter from Edward Avery Harriman to Melville Madison Bigelow (Apr. 14, 1898) (in Bigelow Papers, on file with Boston University Special Collections).
55. Letter from William Sturgis Bigelow to Oliver Wendell Holmes (undated). Bigelow, a mutual friend, offered Holmes a dinner with Roosevelt. See WHITE, supra note 21, at 84. Edward Avery Harriman, a young contracts scholar who corresponded with Holmes, see infra text accompanying notes 66-89, wrote to his old teacher Melville Madison Bigelow, a longtime friend of Holmes, at the outset of the Spanish-American War, "Civilization . . . has not succeeded in abolishing the barbarous desire for personal combat. It is curious to read the gushing essays of a man like Theodore Roosevelt, or the defence of war by Mr. Justice Holmes." Letter from Edward Avery Harriman to Melville Madison Bigelow (Apr. 14, 1898) (in Bigelow Papers, on file with Boston University Special Collections).
56. Letter from William Sturgis Bigelow to Oliver Wendell Holmes (undated). Bigelow, a mutual friend, offered Holmes a dinner with Roosevelt. See WHITE, supra note 21, at 84. Edward Avery Harriman, a young contracts scholar who corresponded with Holmes, see infra text accompanying notes 66-89, wrote to his old teacher Melville Madison Bigelow, a longtime friend of Holmes, at the outset of the Spanish-American War, "Civilization . . . has not succeeded in abolishing the barbarous desire for personal combat. It is curious to read the gushing essays of a man like Theodore Roosevelt, or the defence of war by Mr. Justice Holmes." Letter from Edward Avery Harriman to Melville Madison Bigelow (Apr. 14, 1898) (in Bigelow Papers, on file with Boston University Special Collections).
57. Letter from William Sturgis Bigelow to Oliver Wendell Holmes (undated). Bigelow, a mutual friend, offered Holmes a dinner with Roosevelt. See WHITE, supra note 21, at 84. Edward Avery Harriman, a young contracts scholar who corresponded with Holmes, see infra text accompanying notes 66-89, wrote to his old teacher Melville Madison Bigelow, a longtime friend of Holmes, at the outset of the Spanish-American War, "Civilization . . . has not succeeded in abolishing the barbarous desire for personal combat. It is curious to read the gushing essays of a man like Theodore Roosevelt, or the defence of war by Mr. Justice Holmes." Letter from Edward Avery Harriman to Melville Madison Bigelow (Apr. 14, 1898) (in Bigelow Papers, on file with Boston University Special Collections).
58. See GERALD G. EGGERT, RICHARD OLNEY: EVOLUTION OF A STATESMAN 200-27 (1974).
59. See id. at 221-22.
60. Id. at 222-23 (citing a letter from Theodore Roosevelt to William Sheffield Cowles (Dec. 22, 1895)).
61. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 9, 1896).
62. Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896).
63. Letter from W. Gordon McCabe to Oliver Wendell Holmes (Sept. 15, 1896).
64. Id.
65. Lon Fuller pointed out the connection between the soldier's obedience to senseless orders and the legal positivism espoused in The Path of the Law. LON L. FULLER, THE LAW IN QUEST OF ITSELF 105-07 (1940).
66. Lon Fuller pointed out the connection between the soldier's obedience to senseless orders and the legal positivism espoused in The Path of the Law. LON L. FULLER, THE LAW IN QUEST OF ITSELF 105-07 (1940).
67. MARK DEWOLFE HOWE, SEMI-CENTENNIAL OF THE TAVERN CLUB, 1884-1934, at 74 (1934).
68. Oliver Wendell Holmes, Rudolph C. Lehmann, Remarks at a Tavern Club Dinner (Nov. 24, 1896), in OCCASIONAL SPEECHES 90 (Mark DeWolfe Howe ed., 1962).
69. Oliver Wendell Holmes, Rudolph C. Lehmann, Remarks at a Tavern Club Dinner (Nov. 24, 1896), in OCCASIONAL SPEECHES 90 (Mark DeWolfe Howe ed., 1962).
70. Id. at 91. "The more useless the more ideal." Letter from Oliver Wendell Holmes to Clare Castletown (Apr. 10, 1897) (paraphrasing his remarks at the Lehmann dinner).
71. Id. at 91. "The more useless the more ideal." Letter from Oliver Wendell Holmes to Clare Castletown (Apr. 10, 1897) (paraphrasing his remarks at the Lehmann dinner).
72. Pamphlet at 5, 23, BLSM at 2, 14, HLR at 458, 473, CLP at 169, 194.
73. Pamphlet at 15, BLSM at 8, HLR at 466, CLP at 181.
74. Pamphlet at 17, BLSM at 8, HLR at 466, CLP at 181.
75. Id.
76. In his letters, Holmes admitted a certain indulgence in "the pleasures of avarice" himself. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 21, 1896). "I like to be a little richer at the end of the year . . . which generally I manage." Letter from Oliver Wendell Holmes to Clare Castletown (June 18, 1897).
77. In his letters, Holmes admitted a certain indulgence in "the pleasures of avarice" himself. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 21, 1896). "I like to be a little richer at the end of the year . . . which generally I manage." Letter from Oliver Wendell Holmes to Clare Castletown (June 18, 1897).
78. Pamphlet at 28-29, BLSM at 18, HLR at 478, CLP at 201-02.
79. Pamphlet at 29, BLSM at 18, HLR at 478, CLP at 202.
80. Letter from Oliver Wendell Holmes to Nina Gray (Aug. 7, 1895).
81. Letter from Oliver Wendell Holmes to Georgina Pollock (Aug. 11, 1895), in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 58, 59.
82. Letter from Oliver Wendell Holmes to Nina Gray (Sept. 2, 1895).
83. Letter from Oliver Wendell Holmes to Georgina Pollock (Sept. 13, 1895), in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 61-62. Her husband replied. "We have judicial authority for cycling here too." Sir Francis Jeune, a High Court judge two years younger than Holmes, could be seen cycling about London with his wife. Letter from Frederick Pollock to Oliver Wendell Holmes (Nov. 13, 1895), in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 63.
84. Letter from Oliver Wendell Holmes to Georgina Pollock (Sept. 13, 1895), in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 61-62. Her husband replied. "We have judicial authority for cycling here too." Sir Francis Jeune, a High Court judge two years younger than Holmes, could be seen cycling about London with his wife. Letter from Frederick Pollock to Oliver Wendell Holmes (Nov. 13, 1895), in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 63.
85. Two years later Holmes wrote from Beverly Farms, "the wheel gives me a feeling of not being confined too closely which in other days I have felt here." Letter from Oliver Wendell Holmes to Clare Castletown (June 24, 1897).
86. Pamphlet at 23, BLSM at 14, HLR at 474, CLP at 194. "Mr. Bigelow here" has "made important contributions" to the study of legal history "which will not be forgotten." Bigelow's principal work, PLACITA ANGLO-NORMANNICA: LAW CASES FROM WILLIAM I TO RICHARD I PRESERVED IN HISTORICAL RECORDS (Boston, Little, Brown, & Co. 1879), has been largely forgotten.
87. Pamphlet at 23, BLSM at 14, HLR at 474, CLP at 194. "Mr. Bigelow here" has "made important contributions" to the study of legal history "which will not be forgotten." Bigelow's principal work, PLACITA ANGLO-NORMANNICA: LAW CASES FROM WILLIAM I TO RICHARD I PRESERVED IN HISTORICAL RECORDS (Boston, Little, Brown, & Co. 1879), has been largely forgotten.
88. Letter from Oliver Wendell Holmes to Melville M. Bigelow (Feb. 1, 1894) (asking a question about a waiver doctrine); Letter from Oliver Wendell Holmes to Melville M. Bigelow (Apr. 16, 1898) (in Bigelow Papers, on file with Boston University Special Collections); Letter from Melville M. Bigelow to Oliver Wendell Holmes (Apr. 30, 1898) (on the death of Bigelow's son). A brief undated letter from Bigelow to Holmes in the Holmes Papers may have been written in 1897, a few weeks after Holmes's speech at Boston University, but makes no reference to it. It appears to refer to Holmes's statement "Temptation is not always invitation" in Holbrook v. Aldrich, 168 Mass. 15, 16, 46 N.E. 115 (1897).
89. Letter from Oliver Wendell Holmes to Melville M. Bigelow (Feb. 1, 1894) (asking a question about a waiver doctrine); Letter from Oliver Wendell Holmes to Melville M. Bigelow (Apr. 16, 1898) (in Bigelow Papers, on file with Boston University Special Collections); Letter from Melville M. Bigelow to Oliver Wendell Holmes (Apr. 30, 1898) (on the death of Bigelow's son). A brief undated letter from Bigelow to Holmes in the Holmes Papers may have been written in 1897, a few weeks after Holmes's speech at Boston University, but makes no reference to it. It appears to refer to Holmes's statement "Temptation is not always invitation" in Holbrook v. Aldrich, 168 Mass. 15, 16, 46 N.E. 115 (1897).
90. Letter from Oliver Wendell Holmes to Melville M. Bigelow (Feb. 1, 1894) (asking a question about a waiver doctrine); Letter from Oliver Wendell Holmes to Melville M. Bigelow (Apr. 16, 1898) (in Bigelow Papers, on file with Boston University Special Collections); Letter from Melville M. Bigelow to Oliver Wendell Holmes (Apr. 30, 1898) (on the death of Bigelow's son). A brief undated letter from Bigelow to Holmes in the Holmes Papers may have been written in 1897, a few weeks after Holmes's speech at Boston University, but makes no reference to it. It appears to refer to Holmes's statement "Temptation is not always invitation" in Holbrook v. Aldrich, 168 Mass. 15, 16, 46 N.E. 115 (1897).
91. Letter from Oliver Wendell Holmes to Melville M. Bigelow (Feb. 1, 1894) (asking a question about a waiver doctrine); Letter from Oliver Wendell Holmes to Melville M. Bigelow (Apr. 16, 1898) (in Bigelow Papers, on file with Boston University Special Collections); Letter from Melville M. Bigelow to Oliver Wendell Holmes (Apr. 30, 1898) (on the death of Bigelow's son). A brief undated letter from Bigelow to Holmes in the Holmes Papers may have been written in 1897, a few weeks after Holmes's speech at Boston University, but makes no reference to it. It appears to refer to Holmes's statement "Temptation is not always invitation" in Holbrook v. Aldrich, 168 Mass. 15, 16, 46 N.E. 115 (1897).
92. Edward Avery Harriman, The Nature of Contractual Obligation, 4 NW. L. REV. 97 (1895).
93. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 273 (Boston, Little, Brown, & Co. 1881) (stating that "[c]onsideration is a form as much as a seal" although "we do not notice it").
94. Id. at 299.
95. Id. at 301.
96. Id. at 317.
97. Harriman, supra note 66, at 107.
98. Letter from Edward Avery Harriman to Oliver Wendell Holmes (Jan. 2, 1896).
99. Letter from Oliver Wendell Holmes to Edward Avery Harriman (Jan. 4, 1896) (the date of Dec. 28, 1895, is crossed out and replaced with Jan. 4, 1896; the draft letter is unsigned). Part of this letter is quoted in 2 MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES 232-33 (1963).
100. Letter from Oliver Wendell Holmes to Edward Avery Harriman (Jan. 4, 1896) (the date of Dec. 28, 1895, is crossed out and replaced with Jan. 4, 1896; the draft letter is unsigned). Part of this letter is quoted in 2 MARK DEWOLFE HOWE, JUSTICE OLIVER WENDELL HOLMES 232-33 (1963).
101. See, e.g., O'Donnell v. Clinton, 145 Mass. 461, 463, 14 N.E. 747, 751 (1888) ("Assent in the eye of the law is a matter of overt acts . . . .").
102. Letter from Oliver Wendell Holmes to Edward Avery Harriman (Jan. 4, 1896) (citation omitted).
103. HOLMES, supra note 67, at 301 (emphasis added).
104. Letter from Edward Avery Harriman to Oliver Wendell Holmes (Jan. 7, 1896).
105. FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, A HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I (1895). This work, which soon eclipsed THE COMMON LAW as a classic text of legal history, drew faint praise from Holmes in his speech. "[It] has lent the subject an almost deceptive charm." Pamphlet at 23, BLSM at 14, HLR at 474, CLP at 194.
106. FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, A HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I (1895). This work, which soon eclipsed THE COMMON LAW as a classic text of legal history, drew faint praise from Holmes in his speech. "[It] has lent the subject an almost deceptive charm." Pamphlet at 23, BLSM at 14, HLR at 474, CLP at 194.
107. Letter from Edward Avery Harriman to Oliver Wendell Holmes (Jan. 7, 1896).
108. Letter from Frederick Pollock to Oliver Wendell Holmes (May 29, 1896), in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 69, 70.
109. Pamphlet at 11, BLSM at 6, HLR at 463-64, CLP at 177-78.
110. Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175.
111. Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175-76. Holmes wrote an opinion ordering specific performance of a contract just three days before he gave the speech. See Polson v. Stewart, 167 Mass. 211, 213-17, 45 N.E. 737, 738 (1897).
112. Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175-76. Holmes wrote an opinion ordering specific performance of a contract just three days before he gave the speech. See Polson v. Stewart, 167 Mass. 211, 213-17, 45 N.E. 737, 738 (1897).
113. Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175.
114. James Barr Ames, Specially Contracts and Equitable Defences, 9 HARV. L. REV. 49, 58 (1895).
115. Pamphlet at 21, BLSM at 13, HLR at 472, CLP at 191. Holmes added, "I do not suppose that Mr. Ames would disagree with what I suggest." Id.
116. Pamphlet at 21, BLSM at 13, HLR at 472, CLP at 191. Holmes added, "I do not suppose that Mr. Ames would disagree with what I suggest." Id.
117. Letter from Edward Avery Harriman to Oliver Wendell Holmes (Mar. 9, 1897).
118. Id. Harriman's reference is to Holmes's statement. "I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them." Pamphlet at 23-24, BLSM at 14-15, HLR at 474, CLP at 195.
119. Id. Harriman's reference is to Holmes's statement. "I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them." Pamphlet at 23-24, BLSM at 14-15, HLR at 474, CLP at 195.
120. WHO'S WHO IN LAW 403 (J.C. Schwarz ed., 1937).
121. Postcard from Frederick Pollock to Oliver Wendell Holmes (Feb, 24. 1897).
122. Letter from Frederick Pollock to Oliver Wendell Holmes (Sept. 17, 1897), in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 78, 79.
123. Id. at 80.
124. Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896). For a discussion of the case and Holmes's dissent, see infra text accompanying notes 144-78.
125. Letter from Frederick Pollock to Oliver Wendell Holmes (June 13, 1927), in 2 HOLMES-POLLOCK LETTERS, supra note 38, at 200, 201. Holmes had written to Pollock, "You have always regarded my notion of contract as a pardonable eccentricity." Letter from Oliver Wendell Holmes to Frederick Pollock (May 30, 1927), in 2 HOLMES-POLLOCK LETTERS, supra note 38, at 199, 200.
126. Letter from Frederick Pollock to Oliver Wendell Holmes (June 13, 1927), in 2 HOLMES-POLLOCK LETTERS, supra note 38, at 200, 201. Holmes had written to Pollock, "You have always regarded my notion of contract as a pardonable eccentricity." Letter from Oliver Wendell Holmes to Frederick Pollock (May 30, 1927), in 2 HOLMES-POLLOCK LETTERS, supra note 38, at 199, 200.
127. See, e.g., RICHARD A, POSNER, THE ECONOMIC ANALYSIS OF LAW 55-60 (1st ed. 1972); see also John H. Barton, The Economic Basis of Damages for Breach of Contract, 1 J. LEGAL STUD. 277, 291-92 (1972); Robert L. Birmingham, Breach of Contract, Damages Measures, and Economic Efficiency, 24 RUTGERS L.J. 273, 284-86 (1970); Charles J. Goetz & Robert E. Scott, Liquidated Damages, Penalties, and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach, 11 COL. L. REV. 554, 558-77 (1977).
128. See, e.g., RICHARD A, POSNER, THE ECONOMIC ANALYSIS OF LAW 55-60 (1st ed. 1972); see also John H. Barton, The Economic Basis of Damages for Breach of Contract, 1 J. LEGAL STUD. 277, 291-92 (1972); Robert L. Birmingham, Breach of Contract, Damages Measures, and Economic Efficiency, 24 RUTGERS L.J. 273, 284-86 (1970); Charles J. Goetz & Robert E. Scott, Liquidated Damages, Penalties, and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach, 11 COL. L. REV. 554, 558-77 (1977).
129. See, e.g., RICHARD A, POSNER, THE ECONOMIC ANALYSIS OF LAW 55-60 (1st ed. 1972); see also John H. Barton, The Economic Basis of Damages for Breach of Contract, 1 J. LEGAL STUD. 277, 291-92 (1972); Robert L. Birmingham, Breach of Contract, Damages Measures, and Economic Efficiency, 24 RUTGERS L.J. 273, 284-86 (1970); Charles J. Goetz & Robert E. Scott, Liquidated Damages, Penalties, and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach, 11 COL. L. REV. 554, 558-77 (1977).
130. See, e.g., RICHARD A, POSNER, THE ECONOMIC ANALYSIS OF LAW 55-60 (1st ed. 1972); see also John H. Barton, The Economic Basis of Damages for Breach of Contract, 1 J. LEGAL STUD. 277, 291-92 (1972); Robert L. Birmingham, Breach of Contract, Damages Measures, and Economic Efficiency, 24 RUTGERS L.J. 273, 284-86 (1970); Charles J. Goetz & Robert E. Scott, Liquidated Damages, Penalties, and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach, 11 COL. L. REV. 554, 558-77 (1977).
131. Pamphlet at 18, BLSM at 11, HLR at 474, CLP at 195.
132. See, e.g., Morris R. Cohen, A Critical Sketch of Legal Philosophy in America, in 2 LAW: A CENTURY OF PROGRESS 266, 293 (1937) ("Holmes was by far the greatest legal historian that this country has produced and one to be counted among the foremost masters of all countries.").
133. Pamphlet at 21, BLSM at 13, HLR at 472, CLP at 187 ("[I]f we consider the law of contract we find it full of history.").
134. Commonwealth v. Rubin, 165 Mass. 453, 43 N.E. 200 (1896), cited in Pamphlet at 18, BLSM at 11, HLR at 469, CLP at 187.
135. Id. at 455-56, 43 N.E. at 201.
136. Id. at 455, 43 N.E. at 200. Another issue posed in Commonwealth v. Rubin was the distinction between larceny and embezzlement, an "ancient anomaly" that survived in Massachusetts law. Id. at 454, 43 N.E. at 200. This feature of the case, which also implicated the doctrine of trespass ab initio, is discussed in Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WM. & MARY L. REV. 19, 29 (1995). Court files for this case could not be located in the Supreme Judicial Court Archives.
137. Id. at 455, 43 N.E. at 200. Another issue posed in Commonwealth v. Rubin was the distinction between larceny and embezzlement, an "ancient anomaly" that survived in Massachusetts law. Id. at 454, 43 N.E. at 200. This feature of the case, which also implicated the doctrine of trespass ab initio, is discussed in Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WM. & MARY L. REV. 19, 29 (1995). Court files for this case could not be located in the Supreme Judicial Court Archives.
138. Id. at 455, 43 N.E. at 200. Another issue posed in Commonwealth v. Rubin was the distinction between larceny and embezzlement, an "ancient anomaly" that survived in Massachusetts law. Id. at 454, 43 N.E. at 200. This feature of the case, which also implicated the doctrine of trespass ab initio, is discussed in Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WM. & MARY L. REV. 19, 29 (1995). Court files for this case could not be located in the Supreme Judicial Court Archives.
139. Id. at 455, 43 N.E. at 200. Another issue posed in Commonwealth v. Rubin was the distinction between larceny and embezzlement, an "ancient anomaly" that survived in Massachusetts law. Id. at 454, 43 N.E. at 200. This feature of the case, which also implicated the doctrine of trespass ab initio, is discussed in Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WM. & MARY L. REV. 19, 29 (1995). Court files for this case could not be located in the Supreme Judicial Court Archives.
140. Rubin, 165 Mass. at 456, 43 N.E. at 201.
141. For instance, Holmes was delighted to find that Edward Coke agreed with his view of contractual promises as options in Bromage v. Genning, 1 Rolle 368, 81 Eng. Rep. 540 (K.B. 1616). "It was good enough for Lord Coke . . . and here, as in many other cases, I am content to abide with him." Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175; see also Letter from Oliver Wendell Holmes to Edward Avery Harriman (Jan. 4, 1896). Holmes omitted to say that Coke was embarked on an unsuccessful challenge to Chancery jurisdiction. See Benjamin Kaplan, Encounters with O. W. Holmes, Jr., 96 HARV. L. REV. 1828, 1834 & n.43 (1983).
142. For instance, Holmes was delighted to find that Edward Coke agreed with his view of contractual promises as options in Bromage v. Genning, 1 Rolle 368, 81 Eng. Rep. 540 (K.B. 1616). "It was good enough for Lord Coke . . . and here, as in many other cases, I am content to abide with him." Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175; see also Letter from Oliver Wendell Holmes to Edward Avery Harriman (Jan. 4, 1896). Holmes omitted to say that Coke was embarked on an unsuccessful challenge to Chancery jurisdiction. See Benjamin Kaplan, Encounters with O. W. Holmes, Jr., 96 HARV. L. REV. 1828, 1834 & n.43 (1983).
143. For instance, Holmes was delighted to find that Edward Coke agreed with his view of contractual promises as options in Bromage v. Genning, 1 Rolle 368, 81 Eng. Rep. 540 (K.B. 1616). "It was good enough for Lord Coke . . . and here, as in many other cases, I am content to abide with him." Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175; see also Letter from Oliver Wendell Holmes to Edward Avery Harriman (Jan. 4, 1896). Holmes omitted to say that Coke was embarked on an unsuccessful challenge to Chancery jurisdiction. See Benjamin Kaplan, Encounters with O. W. Holmes, Jr., 96 HARV. L. REV. 1828, 1834 & n.43 (1983).
144. For instance, Holmes was delighted to find that Edward Coke agreed with his view of contractual promises as options in Bromage v. Genning, 1 Rolle 368, 81 Eng. Rep. 540 (K.B. 1616). "It was good enough for Lord Coke . . . and here, as in many other cases, I am content to abide with him." Pamphlet at 9, BLSM at 5, HLR at 462, CLP at 175; see also Letter from Oliver Wendell Holmes to Edward Avery Harriman (Jan. 4, 1896). Holmes omitted to say that Coke was embarked on an unsuccessful challenge to Chancery jurisdiction. See Benjamin Kaplan, Encounters with O. W. Holmes, Jr., 96 HARV. L. REV. 1828, 1834 & n.43 (1983).
145. Y.B. Trin. 11 Hen. 4, pl. 16, fol. 75b (C.P. 1410).
146. Id.
147. Or the revolting nonsense of the ages, as the case may be. These verses by Judge James Madison Barker were found in his locker at the Supreme Judicial Court after his death in 1905 and were sent to Oliver Wendell Holmes on Mar. 10, 1918.
148. The letter is missing, but we can glean its substance through Pollock's response. See Letter from Frederick Pollock to Oliver Wendell Holmes (May 29, 1896). in 1 HOLMES-POLLOCK LETTERS, supra note 38, at 69-70.
149. Pamphlet at 18, BLSM at 11, HLR at 469, CLP at 187.
150. Holmes asked Edmund H. Bennett, the Dean of Boston University, for an invitation for Thayer. Letter from Oliver Wendell Holmes to Edmund H. Bennett (Jan. 7, 1897). Letters to Bennett are in Boston University Special Collections.
151. Letter from James Bradley Thayer to Oliver Wendell Holmes (Jan. 11, 1897): see also Jabez Fox, Law and Morals, BOSTON L. SCH. MAG., Mar. 1897, at 1, 7 ("I hope the learned judge does not mean by his reference to the time of Henry IV that under the new régime we are to cut loose from precedent altogether.").
152. Letter from Oliver Wendell Holmes to James Bradley Thayer (Jan. 12, 1897).
153. Letter from Oliver Wendell Holmes to James Bradley Thayer (Feb. 11, 1897).
154. HOLMES, supra note 30, at 56, 59.
155. Oliver Wendell Holmes Diary for 1896.
156. Holmes's old friend Henry James saw him off for Ireland. Id. Sheldon Novick has suggested that Holmes and Henry James might have been lovers in April 1865 when James lived in Ashburton Place, Boston. SHELDON M. NOVICK, HENRY JAMES: THE YOUNG MASTER 109-10 (1996).
157. Holmes's old friend Henry James saw him off for Ireland. Id. Sheldon Novick has suggested that Holmes and Henry James might have been lovers in April 1865 when James lived in Ashburton Place, Boston. SHELDON M. NOVICK, HENRY JAMES: THE YOUNG MASTER 109-10 (1996).
158. Oliver Wendell Holmes Diary for 1896. In this vest-pocket diary. Holmes used the early pages to list names and addresses of those he met on his trip. Holmes wrote Lady Castletown's name or address another nine times there, along with the following limerick: "There was a young lady of Joppa / Who came a society cropper / She went to Ostend / With a military friend / The rest of the story's not proper." Id.
159. Oliver Wendell Holmes Diary for 1896. In this vest-pocket diary. Holmes used the early pages to list names and addresses of those he met on his trip. Holmes wrote Lady Castletown's name or address another nine times there, along with the following limerick: "There was a young lady of Joppa / Who came a society cropper / She went to Ostend / With a military friend / The rest of the story's not proper." Id.
160. Letter from Oliver Wendell Holmes to Clare Castletown (Aug. 22, 1896).
161. Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896). Holmes also wrote in his first letter from Boston: "I still carry in my pocket a handkerchief . . . with a little infinitesimal dark smear upon it - with it I once rubbed away a - Do you remember? Isn't that a fool thing for a serious Judge." Id.
162. Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896). Holmes also wrote in his first letter from Boston: "I still carry in my pocket a handkerchief . . . with a little infinitesimal dark smear upon it - with it I once rubbed away a - Do you remember? Isn't that a fool thing for a serious Judge." Id.
163. Professor Horwitz has drawn attention to this correspondence and its importance for understanding The Path of the Law. Horwitz, supra note 8, at 70-71.
164. Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 17, 1896).
165. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 17, 1896).
166. Letter from Oliver Wendell Holmes to Clare Castletown (Feb. 11, 1897).
167. Letter from Oliver Wendell Holmes to Clare Castletown (June 18, 1897). Holmes began to close every letter with "I kiss your hands" in October 1896. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). He began to write "I love you still the same" in March 1897. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 26, 1897).
168. Letter from Oliver Wendell Holmes to Clare Castletown (June 18, 1897). Holmes began to close every letter with "I kiss your hands" in October 1896. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). He began to write "I love you still the same" in March 1897. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 26, 1897).
169. Letter from Oliver Wendell Holmes to Clare Castletown (June 18, 1897). Holmes began to close every letter with "I kiss your hands" in October 1896. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). He began to write "I love you still the same" in March 1897. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 26, 1897).
170. Letter from Oliver Wendell Holmes to Clare Castletown (June 18, 1897). Holmes began to close every letter with "I kiss your hands" in October 1896. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). He began to write "I love you still the same" in March 1897. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 26, 1897).
171. Holmes wrote, "Will you remember me when the other amusements begin?" Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 1896); "I hate the thought of anyone except me being admitted to know anything about your real feelings," Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 21, 1896); "as usual my head whirls with the hint of all manner of new men." Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897); "I notice that for a long time I have heard no more of the substantial other. . . . Is he still in statu quo? Whatever that may have been?" Letter from Oliver Wendell Holmes to Clare Castletown (May 7, 1897).
172. Holmes wrote, "Will you remember me when the other amusements begin?" Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 1896); "I hate the thought of anyone except me being admitted to know anything about your real feelings," Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 21, 1896); "as usual my head whirls with the hint of all manner of new men." Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897); "I notice that for a long time I have heard no more of the substantial other. . . . Is he still in statu quo? Whatever that may have been?" Letter from Oliver Wendell Holmes to Clare Castletown (May 7, 1897).
173. Holmes wrote, "Will you remember me when the other amusements begin?" Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 1896); "I hate the thought of anyone except me being admitted to know anything about your real feelings," Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 21, 1896); "as usual my head whirls with the hint of all manner of new men." Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897); "I notice that for a long time I have heard no more of the substantial other. . . . Is he still in statu quo? Whatever that may have been?" Letter from Oliver Wendell Holmes to Clare Castletown (May 7, 1897).
174. Holmes wrote, "Will you remember me when the other amusements begin?" Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 1896); "I hate the thought of anyone except me being admitted to know anything about your real feelings," Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 21, 1896); "as usual my head whirls with the hint of all manner of new men." Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897); "I notice that for a long time I have heard no more of the substantial other. . . . Is he still in statu quo? Whatever that may have been?" Letter from Oliver Wendell Holmes to Clare Castletown (May 7, 1897).
175. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896).
176. John S. Monaghan, The Love Letters of Justice Holmes, BOSTON GLOBE MAG., Mar. 24, 1985, at 14.
177. BAKER, supra note 28, at 599.
178. See id. at 312 (noting that although Holmes's flirtations had been "harmless adventures [in] which he seemed to have done nothing more compromising than quote poetry and offer amusing conversation," his predilection for the company of young women affected his wife so much that she feared opening his letters from Europe "lest she discover a hint of some philandering to distress her").
179. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 12, 1897).
180. Letter from Oliver Wendell Holmes to Nina Gray (Jan. 22, 1897).
181. Letter from Oliver Wendell Holmes to Clare Castletown (Feb. 11, 1897).
182. Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 15, 1897).
183. Letter from Oliver Wendell Holmes to Clare Castletown (June 24, 1897).
184. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 9, 1896).
185. Letter from Oliver Wendell Holmes to Clare Castletown (Dec. 19, 1896).
186. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 17, 1896).
187. Letter from Oliver Wendell Holmes to Clare Castletown (Dec. 18, 1896).
188. Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897).
189. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). "The ironic reaction is good for the moment of leisure - for Sunday afternoon . . . but it doesnt [sic] count for much while you are busy." Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 17, 1896).
190. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). "The ironic reaction is good for the moment of leisure - for Sunday afternoon . . . but it doesnt [sic] count for much while you are busy." Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 17, 1896).
191. Letter from Oliver Wendell Holmes to Clare Castletown (June 24, 1897).
192. Letter from Oliver Wendell Holmes to Nina Gray (June 16, 1896).
193. Letter from Oliver Wendell Holmes to Nina Gray (Oct. 2, 1896).
194. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 5, 1897).
195. Vegelahn, 167 Mass. at 93, 44 N.E. at 1077.
196. See NOVICK, supra note 20, at 222 (explaining Vegelahn),
197. See Leon Stein & Philip Taft, Introduction to THE PULLMAN STRIKE at v-vii (Leon Stein & Philip Taft eds., 1969).
198. In re Debs, 158 U.S. 546, 570 (1895).
199. GROVER CLEVELAND, THE GOVERNMENT IN THE CHICAGO STRIKE OF 1894, at 27 (1913), reprinted in THE PULLMAN STRIKE, supra note 146.
200. GROVER CLEVELAND, THE GOVERNMENT IN THE CHICAGO STRIKE OF 1894, at 27 (1913), reprinted in THE PULLMAN STRIKE, supra note 146.
201. See Stein & Taft, supra note 146, at v-vii.
202. In re Debs, 158 U.S. at 564.
203. Massachusetts Supreme Judicial Court Archives, Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896) (No. 194-Equity).
204. Vegelahn, 167 Mass. at 95, 44 N.E. at 1077.
205. Id. at 99-100, 44 N.E. at 1078.
206. Id. at 99, 44 N.E. at 1077.
207. Id. at 100, 44 N.E. at 1078 (citing Sherry v. Perkins, 147 Mass. 212, 17 N.E. 307 (1888)).
208. Id. at 103, 44 N.E. at 1079.
209. Id. at 104, 44 N.E. at 1079-80.
210. Id. at 106, 44 N.E. at 1080.
211. Id., 44 N.E. at 1081.
212. Id. at 108, 44 N.E. at 1081.
213. See id. at 109, 44 N.E. at 1082 (citing Commonwealth v. Hunt, 45 Mass. (4 Metc.) 111 (1842)).
214. CATHERINE DRINKER BOVVEN, YANKEE FROM OLYMPUS 331 (1943) (quoting Arthur Hill's comments to Bowen).
215. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 13, 1896).
216. Postscript from Oliver Wendell Holmes to Clare Castletown (Nov. 22, 1896) (to a letter dated Nov. 21, 1896).
217. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 13, 1896).
218. Note, "Picketing" - Injunctions against Strikers, 10 HARV. L. REV. 301, 301-02 (1896) (citing Oliver Wendell Holmes, Jr., Privilege, Malice, and Intent, 8 HARV. L. REV. 1, 7-8 (1894)).
219. Note, "Picketing" - Injunctions against Strikers, 10 HARV. L. REV. 301, 301-02 (1896) (citing Oliver Wendell Holmes, Jr., Privilege, Malice, and Intent, 8 HARV. L. REV. 1, 7-8 (1894)).
220. MELVILLE MADISON BIGELOW, THE LAW OF TORTS 240-41, 249, 251 n.2 (8th ed. 1907). The 1901 edition made no mention of the case.
221. Patrol under Ban, BOSTON DAILY GLOBE, Oct. 26, 1896, at 1; Can't Patrol, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1; Three Opinions, BOSTON DAILY GLOBE, Oct. 27, 1896, at 3 (reprinting Holmes's dissent); Liberty Endangered, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1.
222. Patrol under Ban, BOSTON DAILY GLOBE, Oct. 26, 1896, at 1; Can't Patrol, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1; Three Opinions, BOSTON DAILY GLOBE, Oct. 27, 1896, at 3 (reprinting Holmes's dissent); Liberty Endangered, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1.
223. Patrol under Ban, BOSTON DAILY GLOBE, Oct. 26, 1896, at 1; Can't Patrol, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1; Three Opinions, BOSTON DAILY GLOBE, Oct. 27, 1896, at 3 (reprinting Holmes's dissent); Liberty Endangered, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1.
224. Patrol under Ban, BOSTON DAILY GLOBE, Oct. 26, 1896, at 1; Can't Patrol, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1; Three Opinions, BOSTON DAILY GLOBE, Oct. 27, 1896, at 3 (reprinting Holmes's dissent); Liberty Endangered, BOSTON DAILY GLOBE, Oct. 27, 1896, at 1.
225. See NOVICK, supra note 20, at 221.
226. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 9, 1896).
227. Pamphlet at 13, BLSM at 8, HLR at 465, CLP at 180.
228. Pamphlet at 15-16, BLSM at 9, HLR at 467, CLP at 184.
229. Pamphlet at 16, BLSM at 9-10, HLR at 468, CLP at 184.
230. Letter from Oliver Wendell Holmes to Clare Castletown (Nov. 13, 1896).
231. 176 Mass. 492, 504-05, 57 N.E. 1011, 1015-16 (1900).
232. Letter from Oliver Wendell Holmes to Frederick Pollock (Sept. 23, 1902) 69n 1 HOLMES-POLLOCK LETTERS, supra note 38, at 106; BAKER, supra note 28, at 354; WHITE, supra note 21, at 291-92, 306. Theodore Roosevelt also had Holmes's pro-labor decisions in mind when he appointed him. See BAKER, supra note 28, at 335; WHITE, supra note 21, at 300.
233. Letter from Oliver Wendell Holmes to Frederick Pollock (Sept. 23, 1902) 69n 1 HOLMES-POLLOCK LETTERS, supra note 38, at 106; BAKER, supra note 28, at 354; WHITE, supra note 21, at 291-92, 306. Theodore Roosevelt also had Holmes's pro-labor decisions in mind when he appointed him. See BAKER, supra note 28, at 335; WHITE, supra note 21, at 300.
234. Letter from Oliver Wendell Holmes to Frederick Pollock (Sept. 23, 1902) 69n 1 HOLMES-POLLOCK LETTERS, supra note 38, at 106; BAKER, supra note 28, at 354; WHITE, supra note 21, at 291-92, 306. Theodore Roosevelt also had Holmes's pro-labor decisions in mind when he appointed him. See BAKER, supra note 28, at 335; WHITE, supra note 21, at 300.
235. 236 U.S. 1, 27 (1915).
236. Kaplan, supra note 103, at 1836 (explaining of Holmes that Kaplan and his fellow students "knew his radical credentials").
237. Pamphlet at 6, BLSM at 3, HLR at 459, CLP at 171.
238. On file with the Boston University Law Review. Holmes's "black book" does not record short stories.
239. MELVILLE DAVISSON POST, THE STRANGE SCHEMES OF RANDOLPH MASON (New York, G.P. Putnam 1896) [hereinafter STRANGE SCHEMES].
240. See id. at 12 ("The book-stalls have been filled to weariness with tales based on plans whereby the detective, or ferreting power of the State might be baffled. But, prodigious marvel! no writer has attempted to construct tales based on plans where by the punishing power of the State might be baffled.").
241. Id. at 15.
242. Id. at 16.
243. Id. at 15-16.
244. MELVILLE DAVISSON POST, The Corpus Delicti, in STRANGE SCHEMES, supra note 181, at 24, 24-25.
245. Pamphlet at 5, BLSM at 2, HLR at 459, CLP at 170.
246. Pamphlet at 5, BLSM at 3, HLR at 459, CLP at 170.
247. Pamphlet at 6, BLSM at 3, HLR at 459, CLP at 171.
248. See Post, supra note 186, at 27, 44.
249. See id. at 51-56.
250. See id. at 65-67.
251. Id. at 71.
252. See STRANGE SCHEMES, supra note 181, at 19 (citing Ruloff v. People, 18 N.Y. 179 (1858); People v. Bennett, 49 N.Y. 137 (1872)).
253. MELVILLE DAVISSON POST, The Animus Furandi, in STRANGE SCHEMES, supra note 181, at 262.
254. Id. at 261.
255. Id. at 263.
256. Id. at 288.
257. See CHARLES A. NORTON, MELVILLE DAVISSON POST: MAN OF MANY MYSTERIES 72, 75 (1973).
258. See STRANGE SCHEMES, supra note 181, at 17.
259. Adolph L. Luetgert was convicted in Chicago of killing his wife, while Martin Thorn was convicted in New York of killing his wife - apparently after cutting up her body and disposing of the pieces in various locations throughout the city. See NORTON, supra note 199, at 236 n.20.
260. MELVILLE DAVISSON POST, THE MAN OF LAST RESORT, OR, THE CLIENTS OF RANDOLPH MASON at vi (1897).
261. Book Notice, 8 GREEN BAG 436, 436 (October 1896). "Mr. Post has hit upon a most ingenious scheme for enlisting the reader's interest in legal matters. . . . Randolph Mason, a shrewd but unscrupulous lawyer, devotes his great abilities to the task of showing his clients how they may commit the most flagrant wrongs, and yet through the technicalities of the law escape the slightest punishment."
262. Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850). Several books have been written about the case, among them ROBERT SULLIVAN. THE DISAPPEARANCE OF DR. PARKMAN (1971).
263. Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850). Several books have been written about the case, among them ROBERT SULLIVAN. THE DISAPPEARANCE OF DR. PARKMAN (1971).
264. JAMES W. STONE, REPORT OF THE TRIAL OF PROF. JOHN W. WEBSTER 59, 153 (Boston, n.p., 1850).
265. See BOSTON EVENING TRANSCRIPT, Jan. 8, 1897, at 4 (reporting 28 degree temperatures at noon, and predicting increasing cloudiness, probably followed by rain or snow).
266. See Funeral of Gen. Walker, BOSTON EVENING TRANSCRIPT, Jan. 8, 1897, at 1; see also Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897).
267. Holmes said in his speech later that day: "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." Pamphlet at 18, BLSM at 11, HLR at 469. CLP at 187. Walker had been president of both the American Statistical Association and the American Economic Association. Holmes had shown Walker his draft of the speech. Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11,1897). He may have intended this sentence as an indirect tribute to his friend.
268. Holmes said in his speech later that day: "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." Pamphlet at 18, BLSM at 11, HLR at 469. CLP at 187. Walker had been president of both the American Statistical Association and the American Economic Association. Holmes had shown Walker his draft of the speech. Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11,1897). He may have intended this sentence as an indirect tribute to his friend.
269. See Funeral of Gen. Walker, supra note 207, at 1; Simple and Impressive Ceremonies, BOSTON DAILY GLOBE, Jan. 9, 1897, at 5. The articles mention that Louis D. Brandeis represented the Municipal League at the funeral, but do not mention Judge Holmes.
270. See Funeral of Gen. Walker, supra note 207, at 1; Simple and Impressive Ceremonies, BOSTON DAILY GLOBE, Jan. 9, 1897, at 5. The articles mention that Louis D. Brandeis represented the Municipal League at the funeral, but do not mention Judge Holmes.
271. See 167 Mass. 290-364 (1897). Two newspapers reported that Chief Justice Field and the other Associate Justices attended the Boston University School of Law dedication. See Judge Holmes the Orator, BOSTON HERALD, Jan. 9, 1897, at 6; Law School Dedicated. BOSTON EVENING TRANSCRIPT, Jan. 8, 1897, at 3. But Chief Justice Field's letter to Dean Bennett suggests that they did not. See Letter from Walbridge A. Field to Edmund H. Bennett (Jan. 6, 1897).
272. See 167 Mass. 290-364 (1897). Two newspapers reported that Chief Justice Field and the other Associate Justices attended the Boston University School of Law dedication. See Judge Holmes the Orator, BOSTON HERALD, Jan. 9, 1897, at 6; Law School Dedicated. BOSTON EVENING TRANSCRIPT, Jan. 8, 1897, at 3. But Chief Justice Field's letter to Dean Bennett suggests that they did not. See Letter from Walbridge A. Field to Edmund H. Bennett (Jan. 6, 1897).
273. See 167 Mass. 290-364 (1897). Two newspapers reported that Chief Justice Field and the other Associate Justices attended the Boston University School of Law dedication. See Judge Holmes the Orator, BOSTON HERALD, Jan. 9, 1897, at 6; Law School Dedicated. BOSTON EVENING TRANSCRIPT, Jan. 8, 1897, at 3. But Chief Justice Field's letter to Dean Bennett suggests that they did not. See Letter from Walbridge A. Field to Edmund H. Bennett (Jan. 6, 1897).
274. See 167 Mass. 290-364 (1897). Two newspapers reported that Chief Justice Field and the other Associate Justices attended the Boston University School of Law dedication. See Judge Holmes the Orator, BOSTON HERALD, Jan. 9, 1897, at 6; Law School Dedicated. BOSTON EVENING TRANSCRIPT, Jan. 8, 1897, at 3. But Chief Justice Field's letter to Dean Bennett suggests that they did not. See Letter from Walbridge A. Field to Edmund H. Bennett (Jan. 6, 1897).
275. See Religion to Law, BOSTON DAILY GLOBE, Jan. 8, 1897 (evening edition), at 5; The Law School Dedication, 22 UNIVERSITY BEACON 99-100 (1897).
276. See Religion to Law, BOSTON DAILY GLOBE, Jan. 8, 1897 (evening edition), at 5; The Law School Dedication, 22 UNIVERSITY BEACON 99-100 (1897).
277. Law School Dedicated, supra note 210, at 3.
278. See William V. Kellen, Legal Training in Boston University, 1 BOSTON L. SCH. MAG., April 1897, at 6.
279. The Law School Dedication, supra note 211, at 100 (reporting that the Glee Club performed several selections during the course of the event); see also Religion to Law, supra note 211, at 5 (reporting that the Glee Club performed directly before Holmes's address).
280. The Law School Dedication, supra note 211, at 100 (reporting that the Glee Club performed several selections during the course of the event); see also Religion to Law, supra note 211, at 5 (reporting that the Glee Club performed directly before Holmes's address).
281. Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897).
282. Id. In a later letter to Nina Gray, Holmes observed that his speech "seemed to please them." Letter from Oliver Wendell Holmes to Nina Gray (Jan. 22, 1897).
283. Id. In a later letter to Nina Gray, Holmes observed that his speech "seemed to please them." Letter from Oliver Wendell Holmes to Nina Gray (Jan. 22, 1897).
284. See New Building for Students, BOSTON POST, Jan. 8, 1897, at 8 (describing the building's floorplan).
285. See With Befitting Ceremonies, BOSTON DAILY GLOBE, Jan. 8, 1897 (morning edition), at 7.
286. Judge Holmes the Orator, supra note 210, at 6.
287. See Religion to Law, supra note 211, at 5.
288. See id. (listing A.E. Marcy ('92), Anna C. Bartlett ('92), Lizzie A. Smith ('93), and Clara L. Power ('93)). Holmes wrote to Dean Bennett the day before the speech, "I assume that women will not be there, unless it be female law students." Letter from Oliver Wendell Holmes to Edmund H. Bennett (Jan. 7, 1897).
289. See id. (listing A.E. Marcy ('92), Anna C. Bartlett ('92), Lizzie A. Smith ('93), and Clara L. Power ('93)). Holmes wrote to Dean Bennett the day before the speech, "I assume that women will not be there, unless it be female law students." Letter from Oliver Wendell Holmes to Edmund H. Bennett (Jan. 7, 1897).
290. See id. (listing B.P. Wilson ('84) and Edgar P. Benjamin ('94)).
291. See Law School Dedicated, supra note 210, at 3.
292. See New Building for Students, supra note 217, at 5.
293. See id. at 8; Judge Holmes the Orator, supra note 210, at 6.
294. See id. at 8; Judge Holmes the Orator, supra note 210, at 6.
295. Law School Dedicated, supra note 210, at 3.
296. Letter from Arthur Gilman to Edmund H. Bennett (Jan. 9, 1897).
297. Letter from William V. Kellen to Edmund H. Bennett (Jan. 15, 1897).
298. See Memorial to Dean Bennett, BOSTON DAILY GLOBE, Oct. 27,1896, at 8; New Building for Students, supra note 217, at 8; Letter from Orrison S. Marden to Samuel C. Bennett (Jan. 19, 1897).
299. See Memorial to Dean Bennett, BOSTON DAILY GLOBE, Oct. 27,1896, at 8; New Building for Students, supra note 217, at 8; Letter from Orrison S. Marden to Samuel C. Bennett (Jan. 19, 1897).
300. See Memorial to Dean Bennett, BOSTON DAILY GLOBE, Oct. 27,1896, at 8; New Building for Students, supra note 217, at 8; Letter from Orrison S. Marden to Samuel C. Bennett (Jan. 19, 1897).
301. See Recent Deaths - Judge Edmund H. Bennett, BOSTON EVENING TRANSCRIPT, Jan. 3, 1898, at 5.
302. Letter from William Fairfield Warren to Oliver Wendell Holmes (Jan. 12, 1897). The sun set at 4:30 p.m. on Jan. 8, 1897. Miniature Almanac, BOSTON DAILY GLOBE, Jan. 8, 1897 (evening edition), at 12.
303. Letter from William Fairfield Warren to Oliver Wendell Holmes (Jan. 12, 1897). The sun set at 4:30 p.m. on Jan. 8, 1897. Miniature Almanac, BOSTON DAILY GLOBE, Jan. 8, 1897 (evening edition), at 12.
304. Vote of the Boston University Board of Trustees, recorded by William Nast Brodbeck, Secretary (Jan. 11, 1897).
305. Judge Holmes the Orator, supra note 210, at 6; Law School Dedicated, supra note 210, at 3; Religion to Law, supra note 211, at 5.
306. Judge Holmes the Orator, supra note 210, at 6; Law School Dedicated, supra note 210, at 3; Religion to Law, supra note 211, at 5.
307. Judge Holmes the Orator, supra note 210, at 6; Law School Dedicated, supra note 210, at 3; Religion to Law, supra note 211, at 5.
308. Letter from Oliver Wendell Holmes to Edmund H. Bennett (Jan. 9, 1897).
309. Letter from Oliver Wendell Holmes to William Fairfield Warren (Jan. 13, 1897). Letters to Warren are in Boston University Special Collections.
310. Letter from Oliver Wendell Holmes to Clare Castletown (Jan. 11, 1897) ("I had so much to say that I read it in order to get it inside an hour.").
311. Letter from Oliver Wendell Holmes to James Bradley Thayer, Professor, Harvard Law School (Feb. 11, 1897) (noting that "a speech sh[oul]d be printed as she is spoke").
312. Compare Pamphlet at 28; BLSM at 17 ("To the incompetent"), with HLR at 477; CLP at 201 ("For the incompetent").
313. Compare Pamphlet at 28; BLSM at 17 ("To the incompetent"), with HLR at 477; CLP at 201 ("For the incompetent").
314. Letter from Oliver Wendell Holmes to William Fairfield Warren (Jan. 21, 1897).
315. Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 17, 1896).
316. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 17, 1896).
317. Letter from Oliver Wendell Holmes to Edmund H. Bennett, Dean, Boston University School of Law (Dec. 12, 1896).
318. New Temple, BOSTON POST, Jan. 9, 1897, at 5; Religion to Law, supra note 211, at 5.
319. New Temple, BOSTON POST, Jan. 9, 1897, at 5; Religion to Law, supra note 211, at 5.
320. The Law School Dedication, supra note 211, at 99.
321. Law and the Study of Law, supra note 5, at 105.
322. NOVICK, supra note 20, at 451 n.9. For that matter, the name for Islamic law. Shariah, means literally "the way" or "the path."
323. Pamphlet at 11-12, BLSM at 7, HLR at 464, CLP at 178.
324. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896).
325. Letter from Oliver Wendell Holmes to Clare Castletown (May 28, 1897).
326. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 5, 1897). His next letter states: "My birthday was the 8th and a man of 56 ought to be indifferent to everything but ambition, avarice and whatever Sunday qualities he affects, I suppose. But one doesn't always feel so." Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 12, 1897).
327. Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 5, 1897). His next letter states: "My birthday was the 8th and a man of 56 ought to be indifferent to everything but ambition, avarice and whatever Sunday qualities he affects, I suppose. But one doesn't always feel so." Letter from Oliver Wendell Holmes to Clare Castletown (Mar. 12, 1897).
328. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). Holmes referred in this passage to Sir Horace Davey, a House of Lords judge whom he had met in London. Lord Davey is the "very eminent English judge" whose hide-bound view of tort liability Holmes quoted in The Path of the Law. See Pamphlet at 20-21, BLSM at 13, HLR at 471-72, CLP at 191. To Lady Castletown, Holmes wrote "it is wholesome and a correction to fool's paradise to come in contact with one of your huge mundane successes in the law, men like Lord Davey." Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896); see also Letter from Oliver Wendell Holmes to a Judge Baldwin (Feb. 16, 1897).
329. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). Holmes referred in this passage to Sir Horace Davey, a House of Lords judge whom he had met in London. Lord Davey is the "very eminent English judge" whose hide-bound view of tort liability Holmes quoted in The Path of the Law. See Pamphlet at 20-21, BLSM at 13, HLR at 471-72, CLP at 191. To Lady Castletown, Holmes wrote "it is wholesome and a correction to fool's paradise to come in contact with one of your huge mundane successes in the law, men like Lord Davey." Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896); see also Letter from Oliver Wendell Holmes to a Judge Baldwin (Feb. 16, 1897).
330. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). Holmes referred in this passage to Sir Horace Davey, a House of Lords judge whom he had met in London. Lord Davey is the "very eminent English judge" whose hide-bound view of tort liability Holmes quoted in The Path of the Law. See Pamphlet at 20-21, BLSM at 13, HLR at 471-72, CLP at 191. To Lady Castletown, Holmes wrote "it is wholesome and a correction to fool's paradise to come in contact with one of your huge mundane successes in the law, men like Lord Davey." Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896); see also Letter from Oliver Wendell Holmes to a Judge Baldwin (Feb. 16, 1897).
331. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). Holmes referred in this passage to Sir Horace Davey, a House of Lords judge whom he had met in London. Lord Davey is the "very eminent English judge" whose hide-bound view of tort liability Holmes quoted in The Path of the Law. See Pamphlet at 20-21, BLSM at 13, HLR at 471-72, CLP at 191. To Lady Castletown, Holmes wrote "it is wholesome and a correction to fool's paradise to come in contact with one of your huge mundane successes in the law, men like Lord Davey." Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896); see also Letter from Oliver Wendell Holmes to a Judge Baldwin (Feb. 16, 1897).
332. Letter from Oliver Wendell Holmes to Clare Castletown (Oct. 7, 1896). Holmes referred in this passage to Sir Horace Davey, a House of Lords judge whom he had met in London. Lord Davey is the "very eminent English judge" whose hide-bound view of tort liability Holmes quoted in The Path of the Law. See Pamphlet at 20-21, BLSM at 13, HLR at 471-72, CLP at 191. To Lady Castletown, Holmes wrote "it is wholesome and a correction to fool's paradise to come in contact with one of your huge mundane successes in the law, men like Lord Davey." Letter from Oliver Wendell Holmes to Clare Castletown (Sept. 5, 1896); see also Letter from Oliver Wendell Holmes to a Judge Baldwin (Feb. 16, 1897).
333. Pamphlet at 8, BLSM at 5, HLR at 462, CLP at 174.
334. Pamphlet at 19, BLSM at 11, HLR at 470, CLP at 188. In 1908, Holmes said that this and similar questions that he had asked "in a speech to lawyers" long ago were "thought of doubtful propriety then." Letter from Oliver Wendell Holmes to Franklin Ford (Feb. 8, 1908).
335. Pamphlet at 19, BLSM at 11, HLR at 470, CLP at 188. In 1908, Holmes said that this and similar questions that he had asked "in a speech to lawyers" long ago were "thought of doubtful propriety then." Letter from Oliver Wendell Holmes to Franklin Ford (Feb. 8, 1908).
336. Pamphlet at 19, BLSM at 12, HLR at 470, CLP at 189.
337. Vilification came later, after Holmes's death in 1935. See infra notes 266-77 and accompanying text.
338. Canonization came later too, after Holmes's eightieth birthday. See Felix Frankfurter, Twenty Years of Mr. Justice Holmes' Constitutional Opinions, 36 HARV. L. REV. 909, 919 (1923) ("He is a philosopher become king.").
339. Fox, supra note 110, at 3.
340. Id. at 3-4.
341. See id. at 5 (discussing the interaction or morals with criminal and tort law).
342. See infra notes 267-70, 283-85 and accompanying text (recounting the argument that because judges blend morality with law, the "bad man" must take morality into account to predict what a court will do).
343. Id. at 6.
344. Id. at 7.
345. Id.
346. Kaplan, supra note 103, at 1836-37 (footnotes omitted).
347. Max Lerner, Men and Ideas, in THE MIND AND FAITH OF JUSTICE HOLMES 367, 369 (Max Lerner ed., 1943).
348. Robert M. Hutchins, What Shall We Defend?, 6 VITAL SPEECHES OF THE DAY 547, 549 (1940) (convocation address delivered June 11, 1940). Hutchins studied at Yale Law School from 1921 to 1925.
349. LON L. FULLER, THE LAW IN QUEST OF ITSELF 92-95 (1940).
350. Id. at 94.
351. Pamphlet at 15, BLSM at 9, HLR at 467, CLP at 184.
352. See FULLER, supra note 267, at 95.
353. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes - Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
354. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes - Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
355. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes - Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
356. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes -Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
357. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes - Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
358. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes - Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
359. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes - Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
360. See, e.g., FRANCIS P. LEBUFFE & JAMES V. HAYES, THE AMERICAN PHILOSOPHY OF LAW 20, 218-19 (1947) (citing Holmes's various works that display moral relativism and fundamental skepticism); John C. Ford, S.J., The Fundamentals of Holmes' Juristic Philosophy, in PHASES OF AMERICAN CULTURE 51, 57-58 (1942) (citing a passage from The Path of the Law as evidence of relativism and fundamental skepticism). reprinted in 11 FORDHAM L. REV. 255, 259-60 (1942); Francis E. Lucey, Holmes - Liberal - Humanitarian - Believer in Democracy? 39 GEO. L.J. 523, 542-43 (1951); Francis E. Lucey, Natural Law and American Legal Realism: Their Respective Contributions to a Theory of Law in a Democratic Society, 30 GEO. L.J. 493, 500 n.14, 503 n.19 (1942) (citing The Path of the Law) [hereinafter Lucey, Natural Law]; John C. Ford, S.J., The Totalitarian Justice Holmes, 159 CATH. WORLD 114, 118 (1944) (quoting Holmes).
361. Lucey, Natural Law, supra note 271, at 514.
362. On the ascription of "positivism" to judges of the Third Reich, see INGO MÜLL-ER, HITLER'S JUSTICE 219-25 (Deborah Lucas Schneider trans., 1991).
363. Paul L. Gregg, The Pragmatism of Mr. Justice Holmes, 31 GEO. L.J. 262, 294 (1943). On the context of this critique of legal realism in general, and Holmes in particular, from 1936 to 1945, see EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY 159-72 (1973).
364. Paul L. Gregg, The Pragmatism of Mr. Justice Holmes, 31 GEO. L.J. 262, 294 (1943). On the context of this critique of legal realism in general, and Holmes in particular, from 1936 to 1945, see EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY 159-72 (1973).
365. Ben W. Palmer, Hobbes, Holmes and Hitler, 31 A.B.A. J. 569 (1945); see also Ben W. Palmer, Defense Against Leviathan, 32 A.B.A. J. 328, 328 (1946); Ben W. Palmer, The Totalitarianism of Mr. Justice Holmes: Another Chapter in the Controversy, 37 A.B.A. J. 809, 809 (1951).
366. Ben W. Palmer, Hobbes, Holmes and Hitler, 31 A.B.A. J. 569 (1945); see also Ben W. Palmer, Defense Against Leviathan, 32 A.B.A. J. 328, 328 (1946); Ben W. Palmer, The Totalitarianism of Mr. Justice Holmes: Another Chapter in the Controversy, 37 A.B.A. J. 809, 809 (1951).
367. Ben W. Palmer, Hobbes, Holmes and Hitler, 31 A.B.A. J. 569 (1945); see also Ben W. Palmer, Defense Against Leviathan, 32 A.B.A. J. 328, 328 (1946); Ben W. Palmer, The Totalitarianism of Mr. Justice Holmes: Another Chapter in the Controversy, 37 A.B.A. J. 809, 809 (1951).
368. Palmer, Hobbes, Holmes and Hitler, supra note 275, at 570.
369. Westbrook Pegler, Fair Enough, BOSTON AMERICAN, Dec. 18, 1950, at 34, 45. Pegler's column for the Hearst newspapers' King Features Syndicate reached a wide readership. See OLIVER PILAT, PEGLER: ANGRY MAN OF THE PRESS 190, 278 (1963). In earlier columns, Pegler had attacked "the invisible government of the Harvard Law pro-Communist anti-American cult." Id. at 17-18.
370. Westbrook Pegler, Fair Enough, BOSTON AMERICAN, Dec. 18, 1950, at 34, 45. Pegler's column for the Hearst newspapers' King Features Syndicate reached a wide readership. See OLIVER PILAT, PEGLER: ANGRY MAN OF THE PRESS 190, 278 (1963). In earlier columns, Pegler had attacked "the invisible government of the Harvard Law pro-Communist anti-American cult." Id. at 17-18.
371. Westbrook Pegler, Fair Enough, BOSTON AMERICAN, Dec. 18, 1950, at 34, 45. Pegler's column for the Hearst newspapers' King Features Syndicate reached a wide readership. See OLIVER PILAT, PEGLER: ANGRY MAN OF THE PRESS 190, 278 (1963). In earlier columns, Pegler had attacked "the invisible government of the Harvard Law pro-Communist anti-American cult." Id. at 17-18.
372. Mark deWolfe Howe, The Positivism of Mr. Justice Holmes, 64 HARV. L. REV. 529 (1951).
373. Id. at 536-38.
374. Id. at 540.
375. Id. at 542.
376. Id. at 543.
377. Henry M. Hart, Jr., Holmes' Positivism - An Addendum, 64 HARV. L. REV. 929 (1951).
378. Id. at 932.
379. Id. at 932-33.
380. Mark deWolfe Howe, Holmes' Positivism - A Brief Rejoinder, 64 HARV. L. REV. 937, 939 (1951).
381. Id. at 937-38.
382. William Twining, The Bad Man Revisited, 58 CORNELL L. REV. 275, 299-300 (1973).
383. William H. Wilcox, Taking a Good Look at the Bad Man's Point of View, 66 CORNELL L. REV. 1058 (1961).
384. See supra note 95. Judge Richard Posner has written that The Path of the Law "may be the best article-length work on law ever written." Richard A. Posner, Introduction to THE ESSENTIAL HOLMES ix-x (Richard A. Posner ed., 1992).
385. See supra note 95. Judge Richard Posner has written that The Path of the Law "may be the best article-length work on law ever written." Richard A. Posner, Introduction to THE ESSENTIAL HOLMES ix-x (Richard A. Posner ed., 1992).
386. See supra note 95. Judge Richard Posner has written that The Path of the Law "may be the best article-length work on law ever written." Richard A. Posner, Introduction to THE ESSENTIAL HOLMES ix-x (Richard A. Posner ed., 1992).
387. See Symposium, The Path of the Law After One Hundred Years, 110 HARV. L. REV. 989 (1997). Other commentaries are in press. E.g., THE PATH OF THE LAW IN THE TWENTIETH CENTURY (Steven J. Burton ed., forthcoming 1998); Symposium, 63 BROOK L. REV. (forthcoming 1997).
388. See Symposium, The Path of the Law After One Hundred Years, 110 HARV. L. REV. 989 (1997). Other commentaries are in press. E.g., THE PATH OF THE LAW IN THE TWENTIETH CENTURY (Steven J. Burton ed., forthcoming 1998); Symposium, 63 BROOK L. REV. (forthcoming 1997).
389. See Symposium, The Path of the Law After One Hundred Years, 110 HARV. L. REV. 989 (1997). Other commentaries are in press. E.g., THE PATH OF THE LAW IN THE TWENTIETH CENTURY (Steven J. Burton ed., forthcoming 1998); Symposium, 63 BROOK L. REV. (forthcoming 1997).
390. Holmes revisited his "old friend the bad man" in 1915. In American Banana Company v. United Fruit Company, 213 U.S. 347 (1909), Holmes wrote for a unanimous Supreme Court. In the course of holding that the Sherman Anti-Trust Act had no application to United Fruit's activities in Costa Rica, Holmes observed, "Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts. But the word commonly is confined to such prophecies or threats when addressed to persons living within the power of the courts." Id. at 356-57. Here was the "law as prediction" theme from The Path of the Law and Holmes's earlier writings. Commenting on the case in a letter to then-Professor Felix Frankfurter, Holmes added: If you don't want to mix up law with morals etc., (as you may, qua philosopher, but may not qua lawyer), you should approach it with a cynical mind - be a bad man and say I don't care a damn about your approval or disapproval. All I want to know is what will happen (through the courts) if I do so and so. Letter from Oliver Wendell Holmes to Felix Frankfurter (Nov. 4, 1915), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 37 (Robert M. Mennel & Christine L. Compston eds., 1996).
391. Holmes revisited his "old friend the bad man" in 1915. In American Banana Company v. United Fruit Company, 213 U.S. 347 (1909), Holmes wrote for a unanimous Supreme Court. In the course of holding that the Sherman Anti-Trust Act had no application to United Fruit's activities in Costa Rica, Holmes observed, "Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts. But the word commonly is confined to such prophecies or threats when addressed to persons living within the power of the courts." Id. at 356-57. Here was the "law as prediction" theme from The Path of the Law and Holmes's earlier writings. Commenting on the case in a letter to then-Professor Felix Frankfurter, Holmes added: If you don't want to mix up law with morals etc., (as you may, qua philosopher, but may not qua lawyer), you should approach it with a cynical mind - be a bad man and say I don't care a damn about your approval or disapproval. All I want to know is what will happen (through the courts) if I do so and so. Letter from Oliver Wendell Holmes to Felix Frankfurter (Nov. 4, 1915), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 37 (Robert M. Mennel & Christine L. Compston eds., 1996).
392. Holmes revisited his "old friend the bad man" in 1915. In American Banana Company v. United Fruit Company, 213 U.S. 347 (1909), Holmes wrote for a unanimous Supreme Court. In the course of holding that the Sherman Anti-Trust Act had no application to United Fruit's activities in Costa Rica, Holmes observed, "Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts. But the word commonly is confined to such prophecies or threats when addressed to persons living within the power of the courts." Id. at 356-57. Here was the "law as prediction" theme from The Path of the Law and Holmes's earlier writings. Commenting on the case in a letter to then-Professor Felix Frankfurter, Holmes added: If you don't want to mix up law with morals etc., (as you may, qua philosopher, but may not qua lawyer), you should approach it with a cynical mind - be a bad man and say I don't care a damn about your approval or disapproval. All I want to know is what will happen (through the courts) if I do so and so. Letter from Oliver Wendell Holmes to Felix Frankfurter (Nov. 4, 1915), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 37 (Robert M. Mennel & Christine L. Compston eds., 1996).
393. Holmes revisited his "old friend the bad man" in 1915. In American Banana Company v. United Fruit Company, 213 U.S. 347 (1909), Holmes wrote for a unanimous Supreme Court. In the course of holding that the Sherman Anti-Trust Act had no application to United Fruit's activities in Costa Rica, Holmes observed, "Law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts. But the word commonly is confined to such prophecies or threats when addressed to persons living within the power of the courts." Id. at 356-57. Here was the "law as prediction" theme from The Path of the Law and Holmes's earlier writings. Commenting on the case in a letter to then-Professor Felix Frankfurter, Holmes added: If you don't want to mix up law with morals etc., (as you may, qua philosopher, but may not qua lawyer), you should approach it with a cynical mind - be a bad man and say I don't care a damn about your approval or disapproval. All I want to know is what will happen (through the courts) if I do so and so. Letter from Oliver Wendell Holmes to Felix Frankfurter (Nov. 4, 1915), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 37 (Robert M. Mennel & Christine L. Compston eds., 1996).