Holmes's Heritage: Living Greatly in the Law

Boston University Law Review

Volumn 78, Issue 3, 1998, Pages 843-883

  Gavison, Ruth ^a  

^a NONE

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EID: 0032359659     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (190)

1. Oliver Wendell Holmes, The Profession of the Law, Conclusion of a Lecture Delivered to Undergraduates of Harvard Univ., (Feb. 17, 1886) SPEECHES 22, 22-23 (1913) , reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 29, 31 (Max Lerner, ed., 1943) [hereinafter Holmes, The Profession of the Law].
2. Oliver Wendell Holmes, The Profession of the Law, Conclusion of a Lecture Delivered to Undergraduates of Harvard Univ., (Feb. 17, 1886) SPEECHES 22, 22-23 (1913) , reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 29, 31 (Max Lerner, ed., 1943) [hereinafter Holmes, The Profession of the Law].
3. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897), reprinted in 78 B.U. L. REV. 699 (1998).
4. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897), reprinted in 78 B.U. L. REV. 699 (1998).
5. I share what I see as Horwitz's joy in speculating that this great achievement might be attributable to Holmes's excitement over a new love relationship. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: CRISIS OF LEGAL ORTHODOXY 142-43 n.A (Oxford 1992) (describing how Holmes's correspondence with Lady Castleton, whom he met in Ireland, fostered an amorous relationship beginning shortly before Holmes wrote The Path of the Law).
6. See RICHARD A. POSNER, Introduction to THE ESSENTIAL HOLMES ix, xiv (Richard A. Posner ed., Univ. of Chicago Press 1992) [hereinafter POSNER, THE ESSENTIAL HOLMES] (acknowledging that in addition to writing eloquent judicial opinions and pieces of judicial scholarship, Holmes was also a "premier letter writer").
7. See Robert W. Gordon, Holmes' Common Law as a Legal and Social Science, 10 HOFSTRA L. REV. 719, 720 (1982) (criticizing Holmes's Common Law as containing a multitude of contradictory thoughts drawn from positions in sharp conflict with one another); Thomas C. Grey, Plotting The Path of The Law, 63 BROOKLYN L. REV. 19, 19 (1997) [hereinafter Grey, Plotting The Path] (indicating that opinions differ as to the value of Holmes's contributions to legal philosophy and stating that some consider Holmes's works inconsistent and confused). Grey also points out incongruities in The Path of the Law. See id. at 25-26.
8. See Robert W. Gordon, Holmes' Common Law as a Legal and Social Science, 10 HOFSTRA L. REV. 719, 720 (1982) (criticizing Holmes's Common Law as containing a multitude of contradictory thoughts drawn from positions in sharp conflict with one another); Thomas C. Grey, Plotting The Path of The Law, 63 BROOKLYN L. REV. 19, 19 (1997) [hereinafter Grey, Plotting The Path] (indicating that opinions differ as to the value of Holmes's contributions to legal philosophy and stating that some consider Holmes's works inconsistent and confused). Grey also points out incongruities in The Path of the Law. See id. at 25-26.
9. See Robert W. Gordon, Holmes' Common Law as a Legal and Social Science, 10 HOFSTRA L. REV. 719, 720 (1982) (criticizing Holmes's Common Law as containing a multitude of contradictory thoughts drawn from positions in sharp conflict with one another); Thomas C. Grey, Plotting The Path of The Law, 63 BROOKLYN L. REV. 19, 19 (1997) [hereinafter Grey, Plotting The Path] (indicating that opinions differ as to the value of Holmes's contributions to legal philosophy and stating that some consider Holmes's works inconsistent and confused). Grey also points out incongruities in The Path of the Law. See id. at 25-26.
10. This seems to be Grey's recommendation, after a long, comprehensive, detailed and on-the-whole, very fair account of Holmes. See Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 863 (1989) [hereinafter Grey, Legal Pragmatism].
11. See Oliver Wendell Holmes, John Marshall, In Answer to a Motion that the Court Adjourn, on February 4, 1901, the One Hundredth Anniversary of the Day Which Marshall Took his Seat as Chief Justice, (Feb. 4, 1901) SPEECHES 87, 88-89 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 382, 383-84 (Max Lerner, ed., 1943). Although Holmes attributes Marshall's survival to the accident of being present when great decisions needed to be made, Holmes celebrated the historical immortality realized by Descartes and Kant. See Holmes, The Path of the Law, supra note 2, at 478, 78 B.U. L. REV. at 715 (expressing joy that Descartes and Kant have survived and remain much more influential than Napoleon Bonaparte).
12. See Oliver Wendell Holmes, John Marshall, In Answer to a Motion that the Court Adjourn, on February 4, 1901, the One Hundredth Anniversary of the Day Which Marshall Took his Seat as Chief Justice, (Feb. 4, 1901) SPEECHES 87, 88-89 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 382, 383-84 (Max Lerner, ed., 1943). Although Holmes attributes Marshall's survival to the accident of being present when great decisions needed to be made, Holmes celebrated the historical immortality realized by Descartes and Kant. See Holmes, The Path of the Law, supra note 2, at 478, 78 B.U. L. REV. at 715 (expressing joy that Descartes and Kant have survived and remain much more influential than Napoleon Bonaparte).
13. See Oliver Wendell Holmes, John Marshall, In Answer to a Motion that the Court Adjourn, on February 4, 1901, the One Hundredth Anniversary of the Day Which Marshall Took his Seat as Chief Justice, (Feb. 4, 1901) SPEECHES 87, 88-89 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 382, 383-84 (Max Lerner, ed., 1943). Although Holmes attributes Marshall's survival to the accident of being present when great decisions needed to be made, Holmes celebrated the historical immortality realized by Descartes and Kant. See Holmes, The Path of the Law, supra note 2, at 478, 78 B.U. L. REV. at 715 (expressing joy that Descartes and Kant have survived and remain much more influential than Napoleon Bonaparte).
14. See generally Yosal Rogat, The Judge as a Spectator, 31 U. CHI. L. REV. 213, 213 (1964) [hereinafter Rogat, The Judge] (criticizing Holmes); Yosal Rogat, Mr. Justice Holmes: A Dissenting Opinion, 15 STAN. L. REV. 3 (1962) (critiquing Holmes's general thinking as a judge and his response to legal problems). Part III of this article also discusses some of these comments and criticisms.
15. See generally Yosal Rogat, The Judge as a Spectator, 31 U. CHI. L. REV. 213, 213 (1964) [hereinafter Rogat, The Judge] (criticizing Holmes); Yosal Rogat, Mr. Justice Holmes: A Dissenting Opinion, 15 STAN. L. REV. 3 (1962) (critiquing Holmes's general thinking as a judge and his response to legal problems). Part III of this article also discusses some of these comments and criticisms.
16. H. L. A. Hart labels Holmes's The Common Law as a diamond necklace. See H. L. A. Hart, Diamonds and String: Holmes on the Common Law (1963), in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 278, 278 (1983). The description suits well the whole body of Holmes's work.
17. For analyses of the complexity of The Path of the Law and tensions within it, see William W. Fisher, Interpreting Holmes, 110 HARV. L. REV. 1010-1011 (1997) (characterizing three different perspectives presented in The Path of the Law); Grey, Plotting The Path, supra note 5, at 22-51 (identifying the distinct parts of The Path of the Law); Thomas A. Reed, Holmes and The Path of the Law, 37 AM. J. LEGAL HIST. 273, 278-279 (illustrating the four distinct ideas in The Path of the Law).
18. For analyses of the complexity of The Path of the Law and tensions within it, see William W. Fisher, Interpreting Holmes, 110 HARV. L. REV. 1010-1011 (1997) (characterizing three different perspectives presented in The Path of the Law); Grey, Plotting The Path, supra note 5, at 22-51 (identifying the distinct parts of The Path of the Law); Thomas A. Reed, Holmes and The Path of the Law, 37 AM. J. LEGAL HIST. 273, 278-279 (illustrating the four distinct ideas in The Path of the Law).
19. For analyses of the complexity of The Path of the Law and tensions within it, see William W. Fisher, Interpreting Holmes, 110 HARV. L. REV. 1010-1011 (1997) (characterizing three different perspectives presented in The Path of the Law); Grey, Plotting The Path, supra note 5, at 22-51 (identifying the distinct parts of The Path of the Law); Thomas A. Reed, Holmes and The Path of the Law, 37 AM. J. LEGAL HIST. 273, 278-279 (illustrating the four distinct ideas in The Path of the Law).
20. See, e.g., Sheldon Novick, Holmes' Path, Holmes' Goal, 110 HARV. L. REV. 1028, 1032 (1997).
21. See Holmes, The Path of the Law, supra note 2, at 476, 78 B.U. L. REV. at 714 (indicating the importance of theory in the law).
22. See id at 477, 78 B.U. L. REV. at 715. ("Theory is my subject, not practical details.").
23. Id. (qualifying this statement by acknowledging that to the incompetent, an interest in general ideas means a lack of any particular knowledge).
24. Id. at 478, 78 B.U. L. REV. at 715 (expressing concern for those who might never consider general ideas).
25. See id. ("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.").
26. Id.
27. Oliver Wendell Holmes, Memorial Day, (May 30, 1884), SPEECHES 1 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 9, 10 (Max Lerner ed., 1943) [hereinafter Holmes, Memorial Day].
28. Oliver Wendell Holmes, Memorial Day, (May 30, 1884), SPEECHES 1 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 9, 10 (Max Lerner ed., 1943) [hereinafter Holmes, Memorial Day].
29. Id. at 16.
30. Id. at 11.
31. Id. at 16.
32. "[P]leasures do not make happiness and . . . the root of joy as of duty is to put out all one's powers toward some great end. . . . Life is a roar of bargain and battle, but in the very heart of it there rises a mystic spiritual tone that gives meaning to the whole. . . . It reminds us that our only but wholly adequate significance is as part of the unimaginable whole. It suggests that even while we think that we are egotists we are living to ends outside ourselves." Oliver Wendell Holmes, The Class of '61, At The Fiftieth Anniversary of Graduation, (June 28, 1911) SPEECHES 95 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 25, 27 (Max Lerner ed., 1943).
33. "[P]leasures do not make happiness and . . . the root of joy as of duty is to put out all one's powers toward some great end. . . . Life is a roar of bargain and battle, but in the very heart of it there rises a mystic spiritual tone that gives meaning to the whole. . . . It reminds us that our only but wholly adequate significance is as part of the unimaginable whole. It suggests that even while we think that we are egotists we are living to ends outside ourselves." Oliver Wendell Holmes, The Class of '61, At The Fiftieth Anniversary of Graduation, (June 28, 1911) SPEECHES 95 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 25, 27 (Max Lerner ed., 1943).
34. See Oliver Wendell Holmes, The Law, Address at Suffolk Bar Association Dinner (Feb. 5, 1885) SPEECHES 16 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 29 (Max Lerner ed. 1943). Holmes describes the law as a mistress who can be won only by "straining all the faculties by which man is likest to a god." Id. at 30. Holmes views grappling with legal problems akin to adding a "new feature to the unfolding panorama of man's destiny upon this earth." Id. Holmes asserts that the history reflected in the law should be no less than "the moral life of [man's] race." Id. Holmes sees the lawyer's work as ending only when "by the farthest stretch of human imagination, he has seen as with his eyes the birth and growth of society, and by the farthest stretch of reason he has understood the philosophy of its being." Id.
35. See Oliver Wendell Holmes, The Law, Address at Suffolk Bar Association Dinner (Feb. 5, 1885) SPEECHES 16 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 29 (Max Lerner ed. 1943). Holmes describes the law as a mistress who can be won only by "straining all the faculties by which man is likest to a god." Id. at 30. Holmes views grappling with legal problems akin to adding a "new feature to the unfolding panorama of man's destiny upon this earth." Id. Holmes asserts that the history reflected in the law should be no less than "the moral life of [man's] race." Id. Holmes sees the lawyer's work as ending only when "by the farthest stretch of human imagination, he has seen as with his eyes the birth and growth of society, and by the farthest stretch of reason he has understood the philosophy of its being." Id.
36. See Holmes, The Profession of the Law, supra note 1, at 32 (explaining how to live greatly in the law and exhibiting many of the same ideas referred to in the last section of The Path of the Law); see also discussion supra note 12 (discussing the last section of The Path of the Law). In speaking to law students, Holmes urges them to gain an understanding of the law that is deep enough to influence people long after the thinker is gone. He consoles: "And if this joy should not be yours, still it is only thus that you can know that you have done what it lay in you to do - can say that you have lived, and be ready for the end." Holmes, The Profession of the Law, supra note 1, at 33. Here we can see the strand of Holmes's self-perceived duty to try to live greatly. See id. "[N]ot to have lived" seems the worst condemnation Holmes can conceive of. Id. Cf. Holmes, Memorial Day, supra note 18, at 10 ("[A]s life is action and passion, it is required of a man that he should share the passion and action of his time at peril of being judged not to have lived.").
37. See Oliver Wendell Holmes, Speech at Brown University Commencement (1897), in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 35, 36-37 (Max Lerner ed. 1943) ("[T]he difference between the great way of taking things and the small - between philosophy and gossip - is only the difference between realizing the part as a part of a whole and looking at it in its isolation as if it really stood apart.").
38. See discussion supra notes 10-25 (discussing the importance Holmes places on living a meaningful life).
39. Holmes prefers "Whatsoever thy hand findeth to do, do it with thy might" to what he terms "the vain attempt to love one's neighbor as one's self." Oliver Wendell Holmes, Speech at a Dinner Given to Chief Justice Holmes by the Bar Association of Boston (Mar. 7, 1900) SPEECHES 82, 85 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 40, 42 (Max Lerner ed. 1943).
40. Holmes prefers "Whatsoever thy hand findeth to do, do it with thy might" to what he terms "the vain attempt to love one's neighbor as one's self." Oliver Wendell Holmes, Speech at a Dinner Given to Chief Justice Holmes by the Bar Association of Boston (Mar. 7, 1900) SPEECHES 82, 85 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 40, 42 (Max Lerner ed. 1943).
41. See Oliver Wendell Holmes, On Receiving the Degree of Doctor of Laws, Yale University Commencement, (June 30, 1886) SPEECHES 26, 26-27 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 33, 33-34 (Max Lerner ed. 1943) (describing the total exertion necessary in the quest for honor at the risk of noble loss).
42. See Oliver Wendell Holmes, On Receiving the Degree of Doctor of Laws, Yale University Commencement, (June 30, 1886) SPEECHES 26, 26-27 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 33, 33-34 (Max Lerner ed. 1943) (describing the total exertion necessary in the quest for honor at the risk of noble loss).
43. See Oliver Wendell Holmes, The Use of Law Schools (Feb. 15, 1913), in SPEECHES 28, 29-30 (1913) [hereinafter Holmes, The Use of Law Schools] ("But you can not make a master by teaching. He makes himself by aid of his natural gifts."). Holmes's private descriptions of "common people" are among those that do not endear him to democrats and reformers. He dislikes their company and regards their lives as not deserving respect. He is not consumed with a passion to educate them so they as well could see the light of the depth of the quest for meaning, nor to structure social arrangements in such a way that all individuals will be able to share in his quest.
44. See Holmes, The Use of Law Schools, supra note 29, at 30-31 ("[M]en learn that bustle and push are not the equals of quiet genius and serene mastery."). Holmes describes the tendency not to distinguish between people by achievement and Mastery as being "ignobly wrong," and he urges the Harvard Law School to strengthen its commitment to "teach law in the grand manner, and to make great lawyers." Id. at 30.
45. See id. ("Modesty and Reverence are no less virtues of freemen than the democratic feelings which will submit neither to arrogance nor servility.").
46. The sense of humility may well be related in part to the war experience, where men met with no distinction of education or rank and were all equal before death. See Letter from Oliver Wendell Holmes to Harold Laski (Dec. 15, 1926), in THE ESSENTIAL HOLMES, supra note 4 at 77, 77 ("The army taught me some great lessons . . . to know that however fine [a] fellow I thought myself in my usual routine there were other situations alongside and many more in which I was inferior to men that I might have looked down upon had not experience taught me to look up."). In addition see his opening remarks in Oliver Wendell Holmes, The Fraternity of Arms (Dec. 11, 1897), in THE ESSENTIAL HOLMES, supra note 4 at 73, 73 [hereinafter Holmes, The Fraternity of Arms] ("It made us citizens of the world and not of a little town. It made us feel the brotherhood of man.").
47. The sense of humility may well be related in part to the war experience, where men met with no distinction of education or rank and were all equal before death. See Letter from Oliver Wendell Holmes to Harold Laski (Dec. 15, 1926), in THE ESSENTIAL HOLMES, supra note 4 at 77, 77 ("The army taught me some great lessons . . . to know that however fine [a] fellow I thought myself in my usual routine there were other situations alongside and many more in which I was inferior to men that I might have looked down upon had not experience taught me to look up."). In addition see his opening remarks in Oliver Wendell Holmes, The Fraternity of Arms (Dec. 11, 1897), in THE ESSENTIAL HOLMES, supra note 4 at 73, 73 [hereinafter Holmes, The Fraternity of Arms] ("It made us citizens of the world and not of a little town. It made us feel the brotherhood of man.").
48. See Oliver Wendell Holmes, Life as Joy, Duty, End, in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 40, 42 (Max Lerner, ed., 1943).
49. The tension may seem superficial because it is true only for the short term. On the one hand, thinkers are presented as those seeking knowledge for its own sake while on the other hand, doers are the ones that rule the world but yet "all thought is social,[and] is on its way to action." Oliver Wendell Holmes, John Marshall (Feb. 4, 1901), in SPEECHES supra note 7, at 91. The latter view connects thinkers and doers, making thinkers the ultimate doers. However, despite this primacy of thinkers, Holmes's preference of a judgeship meant he decided to be a more direct doer, in the special way a judge is a doer.
50. See Oliver Wendell Holmes, Natural Law, 32 HARV. L. REV. 40, 43 (1918) ("I see no basis for a philosophy that tells us what we should want to want.").
51. See Holmes, Natural Law, supra note 35, at 41-42 ("[W]e all, whether we know it or not, are fighting to make the kind of world that we should like-but that we have learned to recognize that others will fight and die to make a different world, with equal sincerity or belief.").
52. Other assumptions include the need to eat in order to survive and the need to enjoy some limited security. See id. ("[P]eople wish to live [and in order to do so] . . . they must eat and drink. That necessary is absolute. It is a necessity of less degree but practically general that they should live in society. If they live in society, so far as we can see, there are further conditions."). His analysis is similar to H.L.A. Hart's notion of the minimal content of natural law.
53. See Richard Posner, Introduction to THE ESSENTIAL HOLMES, supra note 4 at ix; see also Max Lerner, Introduction to THE MIND AND FAITH OF JUSTICE HOLMES, supra note 7, at xxii.
54. See Richard Posner, Introduction to THE ESSENTIAL HOLMES, supra note 4 at ix; see also Max Lerner, Introduction to THE MIND AND FAITH OF JUSTICE HOLMES, supra note 7, at xxii.
55. See Letter from Oliver Wendell Holmes to Lewis Einstein (Oct. 12, 1914), in THE ESSENTIAL HOLMES supra note 4, at 101 (stating that the first World War disproves this hope, and there will always be cases in which the only choice is to fight for the things one believes in).
56. See e.g., Holmes, Natural Law, supra note 35, at 42.
57. Furthermore, this struggle must be "carried on in a fair and equal way," so that workers should be allowed to form associations to negotiate with employers. See Vegelahn v. Guntner, 167 Mass. 92, 108 (1896) (Holmes, J., dissenting).
58. His reference to the point in Holmes, The Path of the Law, supra note 2, at 466-7, 78 B.U. L. REV. at 706, is neutral. In other places he is much clearer in voicing objection to the morality and prudence of fighting against political changes by invoking interpretations of the constitution that embodies old economic doctrines. His dissent in Lochner v. New York is a famous example, but the line is recurrent. See Lochner v. New York, 198 U.S. 45, 75 (1905). His dissent in Truax v. Corrigan, 257 U.S. 312 (1921), exemplifies this point. "There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I must respect." Id.
59. His reference to the point in Holmes, The Path of the Law, supra note 2, at 466-7, 78 B.U. L. REV. at 706, is neutral. In other places he is much clearer in voicing objection to the morality and prudence of fighting against political changes by invoking interpretations of the constitution that embodies old economic doctrines. His dissent in Lochner v. New York is a famous example, but the line is recurrent. See Lochner v. New York, 198 U.S. 45, 75 (1905). His dissent in Truax v. Corrigan, 257 U.S. 312 (1921), exemplifies this point. "There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I must respect." Id.
60. His reference to the point in Holmes, The Path of the Law, supra note 2, at 466-7, 78 B.U. L. REV. at 706, is neutral. In other places he is much clearer in voicing objection to the morality and prudence of fighting against political changes by invoking interpretations of the constitution that embodies old economic doctrines. His dissent in Lochner v. New York is a famous example, but the line is recurrent. See Lochner v. New York, 198 U.S. 45, 75 (1905). His dissent in Truax v. Corrigan, 257 U.S. 312 (1921), exemplifies this point. "There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I must respect." Id.
61. See Letter from Oliver Wendell Holmes to Sir John Pollock (Feb. 1, 1920), in 2 Holmes-Pollock Letters 36, 36 (Mark DeWolfe Howe ed., 1953) ("I believe that force, mitigated so far as may be by good manners, is the ultimate ratio, and between two groups that want to make inconsistent kinds of world I see no remedy except force.").
62. Oliver Wendell Holmes, The Soldier's Faith (May 30, 1895), in SPEECHES, supra note 1, at 56, 62 [hereinafter Holmes, The Soldier's Faith] (commenting that war is horrible and dull). See also Letter from Oliver Wendell Holmes to Lewis Einstein, supra note 44; Letter from Oliver Wendell Holmes to Sir John Pollock, supra note 39.
63. Oliver Wendell Holmes, The Soldier's Faith (May 30, 1895), in SPEECHES, supra note 1, at 56, 62 [hereinafter Holmes, The Soldier's Faith] (commenting that war is horrible and dull). See also Letter from Oliver Wendell Holmes to Lewis Einstein, supra note 44; Letter from Oliver Wendell Holmes to Sir John Pollock, supra note 39.
64. Another way to avoid the need to go to war over commitments is the dissemination of the belief that values are relative. One can glimpse Holmes's approach to war and to attitudes towards it in his dissent in U.S. v. Schwimmer, 279 U.S. 644, 653-54 (1929), where he wanted to invalidate a decision not to admit petitioner as a citizen due to her pacifism. Holmes said that while he does not share her optimism that wars will soon end, he knows well that most of those who encounter war think it horrid and would be very happy if peace won. See id.
65. See Holmes, The Soldier's Faith, supra note 44, at 56-57.
66. See Holmes, Natural Law, supra note 35, at 40 ("Certitude is not the test of certainty. We have been cock-sure of many things that were not so.").
67. See id. at 41. ("What we most love and revere generally is determined by early associations. I love granite rocks and barberry bushes, no doubt because with them my earliest joys that reach back through the past eternity of my life.").
68. These themes recur in Holmes' writings. See e.g., Oliver Wendell Holmes, Ideals and Doubts, 10 ILL. L. REV. 1, 2 (1915), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES, supra note 1, at 18, 23 ("But as there are many thing that I cannot help doing that the universe can, I do not venture to assume that my inabilities in the way of thought are inabilities of the universe. I therefore define the truth as the system of my limitation.").
69. These themes recur in Holmes' writings. See e.g., Oliver Wendell Holmes, Ideals and Doubts, 10 ILL. L. REV. 1, 2 (1915), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES, supra note 1, at 18, 23 ("But as there are many thing that I cannot help doing that the universe can, I do not venture to assume that my inabilities in the way of thought are inabilities of the universe. I therefore define the truth as the system of my limitation.").
70. See Holmes, Natural Law, supra note 35, at 41 ("Deep-seated preferences can not be argued about - you can not argue a man into liking a glass of beer - and therefore, when differences are sufficiently far reaching, we try to fill the other man rather than let him have his way. But that is perfectly consistent with admitting that, so far as appears, his grounds are just as good as ours."); id. ("But while one's experience thus makes certain preferences dogmatic for oneself, recognition of how they can to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else."). It is not clear how far-reaching this skepticism is. The essay, Natural Law, which is the source of many of these observations was written during World War I. Holmes wants his side to win, but reflects that the way people will see the War in the future depends to a large extent the identity of the winner. See also Letter from Oliver Wendell Holmes to Lewis Einstein, supra note 39, at 101. He glorifies the Civil War and justifies it, among other things, by the fact that many thought it was time to abolish slavery, but he is unwilling to condemn the vision of the confederates. Moreover, he sees this as an important way to give Memorial Day a significance that may unite North and South despite the different ways in which they view the war. See Oliver Wendell Holmes, Memorial Day, supra note 18, at 1. In some texts, Holmes seems a consistent relativist, reducing all moral statements to statements about moral beliefs of some people. However, he also exhibits the attitudes that are used by scholars like Michael Moore to justify their claim that our thought and language presuppose the realism of morality. See generally Michael S. Moore, Moral Reality Revisited, 90 MICH. L. REV. 2424 (1992).
71. See Holmes, Natural Law, supra note 35, at 41 ("Deep-seated preferences can not be argued about - you can not argue a man into liking a glass of beer - and therefore, when differences are sufficiently far reaching, we try to fill the other man rather than let him have his way. But that is perfectly consistent with admitting that, so far as appears, his grounds are just as good as ours."); id. ("But while one's experience thus makes certain preferences dogmatic for oneself, recognition of how they can to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else."). It is not clear how far-reaching this skepticism is. The essay, Natural Law, which is the source of many of these observations was written during World War I. Holmes wants his side to win, but reflects that the way people will see the War in the future depends to a large extent the identity of the winner. See also Letter from Oliver Wendell Holmes to Lewis Einstein, supra note 39, at 101. He glorifies the Civil War and justifies it, among other things, by the fact that many thought it was time to abolish slavery, but he is unwilling to condemn the vision of the confederates. Moreover, he sees this as an important way to give Memorial Day a significance that may unite North and South despite the different ways in which they view the war. See Oliver Wendell Holmes, Memorial Day, supra note 18, at 1. In some texts, Holmes seems a consistent relativist, reducing all moral statements to statements about moral beliefs of some people. However, he also exhibits the attitudes that are used by scholars like Michael Moore to justify their claim that our thought and language presuppose the realism of morality. See generally Michael S. Moore, Moral Reality Revisited, 90 MICH. L. REV. 2424 (1992).
72. See Holmes, Natural Law, supra note 35, at 41 ("Deep-seated preferences can not be argued about - you can not argue a man into liking a glass of beer - and therefore, when differences are sufficiently far reaching, we try to fill the other man rather than let him have his way. But that is perfectly consistent with admitting that, so far as appears, his grounds are just as good as ours."); id. ("But while one's experience thus makes certain preferences dogmatic for oneself, recognition of how they can to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else."). It is not clear how far-reaching this skepticism is. The essay, Natural Law, which is the source of many of these observations was written during World War I. Holmes wants his side to win, but reflects that the way people will see the War in the future depends to a large extent the identity of the winner. See also Letter from Oliver Wendell Holmes to Lewis Einstein, supra note 39, at 101. He glorifies the Civil War and justifies it, among other things, by the fact that many thought it was time to abolish slavery, but he is unwilling to condemn the vision of the confederates. Moreover, he sees this as an important way to give Memorial Day a significance that may unite North and South despite the different ways in which they view the war. See Oliver Wendell Holmes, Memorial Day, supra note 18, at 1. In some texts, Holmes seems a consistent relativist, reducing all moral statements to statements about moral beliefs of some people. However, he also exhibits the attitudes that are used by scholars like Michael Moore to justify their claim that our thought and language presuppose the realism of morality. See generally Michael S. Moore, Moral Reality Revisited, 90 MICH. L. REV. 2424 (1992).
73. Holmes, Natural Law, supra note 35, at 43-44.
74. See Letter from Oliver Wendell Holmes to Harold Laski (Aug. 1, 1925), in THE ESSENTIAL HOLMES supra note 4, at 142 ("I equally fail to respect the passion for inequality.").
75. See Holmes, The Soldier's Faith, supra note 44, at 20 ("But who of us could endure a world, although cut up into five-acre lots and having no man upon it who was not well fed and well housed, without the divine folly of honor, without the senseless passion for knowledge outreaching the flaming bounds of the possible, without ideals the essence of which is that they can never be achieved.").
76. See Plant v. Woods, 176 Mass. 493, 505 (1900).
77. See id. ("Organization and strikes may get a larger share for the members of the organization, but, if they do, they get it at the expense of the less organized and less powerful portion of the laboring class."). But see Holmes, Ideals and Doubts, supra note 49, at 2 ("Probably I am too skeptical as to our ability to do more that shift disagreeable burdens from the shoulders of the stronger to those of the weaker.").
78. See Holmes, Natural Law, supra note 35, at 42 ("But for legal purposes a right is only the hypothesis of a prophecy - the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it . . . . No doubt behind these legal rights is the fighting will of the subject to maintain them, and the spread of his emotions to the general rules by which they are maintained; but that does not seem to me the same thing as the supposed a priori discernment of a duty or the assertion of a preexisting right."). These are persistent themes in Holmes's thought. See, for example, his discussion of the criminal law in chapter two of THE COMMON LAW.
79. See THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS, supra note 1, at 59 (reporting that upon returning home from the War, Holmes contemplated his career path, considering philosophy and literature before settling on law).
80. See Holmes, The Law, supra note 23, at 29 (asking rhetorically which other profession allows one to "plunge so deep in the stream of life - [to] share its passions, its battles, its despair, its triumphs, both as witness and actor?").
81. Id.
82. See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 220-39 (1990) (discussing the methodological problems of legal theory).
83. For a similar approach, for similar reasons, see H.L.A. HART, PROBLEMS OF THE PHILOSOPHY OF LAW, 6 ENCYCLOPEDIA OF PHIL. 264 (Paul Edwards, ed., 1967) reprinted in Essays of Jurisprudence and Philosophy 89 (Oxford 1983).
84. For a similar approach, for similar reasons, see H.L.A. HART, PROBLEMS OF THE PHILOSOPHY OF LAW, 6 ENCYCLOPEDIA OF PHIL. 264 (Paul Edwards, ed., 1967) reprinted in Essays of Jurisprudence and Philosophy 89 (Oxford 1983).
85. See, e.g., THE PROBLEMS OF JURISPRUDENCE, supra note 66, at 220-28 (describing Holmes's contributions to the juiciest, ontological question in jurisprudence: the question of what law is"); Grey, Plotting the Path, supra note 5.
86. See, e.g., THE PROBLEMS OF JURISPRUDENCE, supra note 66, at 220-28 (describing Holmes's contributions to the juiciest, ontological question in jurisprudence: the question of what law is"); Grey, Plotting the Path, supra note 5.
87. Holmes, The Path of the Law, supra note 2, at 461, 78 B.U. L. REV. at 702 (emphasis added).
88. Id. at 458, 78 B.U. L. REV. at 700 (emphasis added).
89. Id. at 459, 78 B.U. L. REV. at 700.
90. Holmes's second "definition" could very well be accepted by H.L.A. Hart, while the "prediction" definition is criticized by Hart as an example of "rule-skepticism." See H.L.A. HART, THE CONCEPT OF LAW 20 (Oxford 1960).
91. See Holmes, The Path of the Law, supra note 2, at 459, 78 B.U. L. REV. at 700. The sentence preceding the definition is "I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism." Id.
92. See Holmes, Natural Law, supra note 35, at 40-42 (pointing out the perceived weaknesses in the natural law approach to living with others); Holmes, The Path of the Law, supra note 2, at 459, 78 B.U. L. REV. at 700 ("A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can."). In the many years that elapsed since Holmes's writings, these themes were developed by many theorists of law. In fact, the complex relationship between law and morals, and its connection to our definition of law are among the most persistent problems of legal theory. See generally, Ruth Gavison, Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round, 91 YALE L.J. 1250 (1982) (reviewing JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS IN LAW AND MORALITY (1979) and JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980)) (comparing the opposite theories explored by the two books).
93. See Holmes, Natural Law, supra note 35, at 40-42 (pointing out the perceived weaknesses in the natural law approach to living with others); Holmes, The Path of the Law, supra note 2, at 459, 78 B.U. L. REV. at 700 ("A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can."). In the many years that elapsed since Holmes's writings, these themes were developed by many theorists of law. In fact, the complex relationship between law and morals, and its connection to our definition of law are among the most persistent problems of legal theory. See generally, Ruth Gavison, Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round, 91 YALE L.J. 1250 (1982) (reviewing JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS IN LAW AND MORALITY (1979) and JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980)) (comparing the opposite theories explored by the two books).
94. See Holmes, Natural Law, supra note 35, at 40-42 (pointing out the perceived weaknesses in the natural law approach to living with others); Holmes, The Path of the Law, supra note 2, at 459, 78 B.U. L. REV. at 700 ("A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can."). In the many years that elapsed since Holmes's writings, these themes were developed by many theorists of law. In fact, the complex relationship between law and morals, and its connection to our definition of law are among the most persistent problems of legal theory. See generally, Ruth Gavison, Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round, 91 YALE L.J. 1250 (1982) (reviewing JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS IN LAW AND MORALITY (1979) and JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980)) (comparing the opposite theories explored by the two books).
95. See Holmes, Natural Law, supra note 35, at 40-42 (pointing out the perceived weaknesses in the natural law approach to living with others); Holmes, The Path of the Law, supra note 2, at 459, 78 B.U. L. REV. at 700 ("A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can."). In the many years that elapsed since Holmes's writings, these themes were developed by many theorists of law. In fact, the complex relationship between law and morals, and its connection to our definition of law are among the most persistent problems of legal theory. See generally, Ruth Gavison, Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round, 91 YALE L.J. 1250 (1982) (reviewing JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS IN LAW AND MORALITY (1979) and JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980)) (comparing the opposite theories explored by the two books).
96. See Richard A. Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1041 (1997) (noting that judges in the highest courts cannot use the prediction theory in deciding cases). While this conception may still be useful for lower court judges, this may be so only because they are trying to predict how the higher court will decide, not how they themselves will or should decide. But the coherence of a conception is not enough, as there may well be judges who think that they ought to apply the law as they read it, despite the fact that they can predict that the higher court is likely to overrule them, and that they may well pay a price for their decision. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 154-61 (1994) (relaying Judge Learned Hand's advocacy of his approach to the "clear and present danger" test, illustrated in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), over that of the Supreme Court). See also Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb 15, 1913) SPEECHES 98 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387 (Max Lerner, ed. 1943) (expressing regret to see such accusations leveled against one who "spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound"). Even if Holmes and Hand are wrong, we should prefer a linguistic framework that allows us to discuss their claims, possibly in order to refute them, to one that makes their claims unintelligible.
97. See Richard A. Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1041 (1997) (noting that judges in the highest courts cannot use the prediction theory in deciding cases). While this conception may still be useful for lower court judges, this may be so only because they are trying to predict how the higher court will decide, not how they themselves will or should decide. But the coherence of a conception is not enough, as there may well be judges who think that they ought to apply the law as they read it, despite the fact that they can predict that the higher court is likely to overrule them, and that they may well pay a price for their decision. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 154-61 (1994) (relaying Judge Learned Hand's advocacy of his approach to the "clear and present danger" test, illustrated in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), over that of the Supreme Court). See also Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb 15, 1913) SPEECHES 98 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387 (Max Lerner, ed. 1943) (expressing regret to see such accusations leveled against one who "spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound"). Even if Holmes and Hand are wrong, we should prefer a linguistic framework that allows us to discuss their claims, possibly in order to refute them, to one that makes their claims unintelligible.
98. See Richard A. Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1041 (1997) (noting that judges in the highest courts cannot use the prediction theory in deciding cases). While this conception may still be useful for lower court judges, this may be so only because they are trying to predict how the higher court will decide, not how they themselves will or should decide. But the coherence of a conception is not enough, as there may well be judges who think that they ought to apply the law as they read it, despite the fact that they can predict that the higher court is likely to overrule them, and that they may well pay a price for their decision. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 154-61 (1994) (relaying Judge Learned Hand's advocacy of his approach to the "clear and present danger" test, illustrated in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), over that of the Supreme Court). See also Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb 15, 1913) SPEECHES 98 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387 (Max Lerner, ed. 1943) (expressing regret to see such accusations leveled against one who "spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound"). Even if Holmes and Hand are wrong, we should prefer a linguistic framework that allows us to discuss their claims, possibly in order to refute them, to one that makes their claims unintelligible.
99. See Richard A. Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1041 (1997) (noting that judges in the highest courts cannot use the prediction theory in deciding cases). While this conception may still be useful for lower court judges, this may be so only because they are trying to predict how the higher court will decide, not how they themselves will or should decide. But the coherence of a conception is not enough, as there may well be judges who think that they ought to apply the law as they read it, despite the fact that they can predict that the higher court is likely to overrule them, and that they may well pay a price for their decision. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 154-61 (1994) (relaying Judge Learned Hand's advocacy of his approach to the "clear and present danger" test, illustrated in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), over that of the Supreme Court). See also Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb 15, 1913) SPEECHES 98 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387 (Max Lerner, ed. 1943) (expressing regret to see such accusations leveled against one who "spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound"). Even if Holmes and Hand are wrong, we should prefer a linguistic framework that allows us to discuss their claims, possibly in order to refute them, to one that makes their claims unintelligible.
100. See Richard A. Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1041 (1997) (noting that judges in the highest courts cannot use the prediction theory in deciding cases). While this conception may still be useful for lower court judges, this may be so only because they are trying to predict how the higher court will decide, not how they themselves will or should decide. But the coherence of a conception is not enough, as there may well be judges who think that they ought to apply the law as they read it, despite the fact that they can predict that the higher court is likely to overrule them, and that they may well pay a price for their decision. See, e.g., GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 154-61 (1994) (relaying Judge Learned Hand's advocacy of his approach to the "clear and present danger" test, illustrated in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), over that of the Supreme Court). See also Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb 15, 1913) SPEECHES 98 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387 (Max Lerner, ed. 1943) (expressing regret to see such accusations leveled against one who "spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound"). Even if Holmes and Hand are wrong, we should prefer a linguistic framework that allows us to discuss their claims, possibly in order to refute them, to one that makes their claims unintelligible.
101. Holmes, The Path of the Law, supra note 2, at 460, 78 B.U. L. REV. at 701.
102. OLIVER WENDELL HOLMES, THE COMMON LAW, reprinted in THE MIND AND FAITH OF JUSTICE HOLMES, supra note 1, at 51 ("The life of the law has not been logic: it has been experience."). This may be Holmes's most quoted insight. He follows this by noting that the necessities of the time are the "prevalent moral and political theories" and the values in fact informing and inspiring the judiciary. They are not morality in an ideal realistic sense. Id.
103. OLIVER WENDELL HOLMES, THE COMMON LAW, reprinted in THE MIND AND FAITH OF JUSTICE HOLMES, supra note 1, at 51 ("The life of the law has not been logic: it has been experience."). This may be Holmes's most quoted insight. He follows this by noting that the necessities of the time are the "prevalent moral and political theories" and the values in fact informing and inspiring the judiciary. They are not morality in an ideal realistic sense. Id.
104. See generally Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983) (discussing Cristopher Columbus Langdell's "classical orthodoxy" which stood in direct contradiction to Holmes's belief of law as experience and not logic).
105. Holmes, The Path of the Law, supra note 2, at 459, 78 B.U. L. REV. at 700.
106. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 615-21 (1958) (recounting the experience of Gustav Radbruch, who was a positivist until the tyranny of Nazi Germany caused him to recant that school of thought); see also Lon L. Fuller's response in Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630, 639 (1958).
107. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 615-21 (1958) (recounting the experience of Gustav Radbruch, who was a positivist until the tyranny of Nazi Germany caused him to recant that school of thought); see also Lon L. Fuller's response in Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 HARV. L. REV. 630, 639 (1958).
108. I say more about this in my review of JOSEPH RAZ, THE AUTHORITY OF LAW, supra note 68.
109. See, e.g., Holmes, The Path of the Law, supra note 2, at 459, 78 B.U. L. REV. at 700 ("When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.").
110. See id. at 460, 78 B.U. L. REV. at 701 (cautioning that it is easy to "take these words in their moral sense, at some stage of the argument, and so to drop into fallacy").
111. See id. at 462, 78 B.U. L. REV. at 702 (pointing out that the "notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law").
112. See P.S. ATIYAH, PRAGMATISM AND THEORY IN ENGLISH LAW 18-26 (1987) (discussing the distinction in English Law between rights and remedies); see also P.S. Atiyah, The Legacy of Holmes Through English Eyes, in HOLMES AND THE COMMON LAW: A CENTURY LATER 27 (1983) (reconciling Holmes's rejection of morality in the law with his desire for policy-oriented law).
113. See P.S. ATIYAH, PRAGMATISM AND THEORY IN ENGLISH LAW 18-26 (1987) (discussing the distinction in English Law between rights and remedies); see also P.S. Atiyah, The Legacy of Holmes Through English Eyes, in HOLMES AND THE COMMON LAW: A CENTURY LATER 27 (1983) (reconciling Holmes's rejection of morality in the law with his desire for policy-oriented law).
114. For a typical ambiguous paragraph, see THE COMMON LAW, at the end of Chapter 1: "It remains to be proved that, while the terminology of morals is still retained, and while the law does still and always, in a certain sense, measure legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated." THE MIND AND FAITH OF JUSTICE HOLMES, supra note 1, at 56.
115. See Holmes, The Path of the Law, supra note 2, at 463, 78 B.U. L. REV. at 704. I am not sure Horwitz is right in his stimulating claim, see MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: CRISIS OF LEGAL ORTHODOXY ch. 4 (Oxford 1992), that there was a change of mind here, and that there are two Holmeses, an earlier one supporting just external standards, and a later one who sees this cannot be done, and that the change is related to a disappointment from a hope that tradition and development could be integrated in the common law, and from a later development of the stance of judicial deference to legislation. I tend to think that Holmes himself did not change his mind on the interrelationships between law and politics, and that he had always been an advocate of deference to legislative will. Since most of his seemingly-absolute statements are written in this way to be clear and provocative, I do not read his more nuanced approach to objective standards as a change of mind or heart, but as a reflection of the need, in that context, to emphasize the dangers of presenting policy questions as dictated by necessities.
116. See Holmes, The Path of the Law, supra note 2, at 463, 78 B.U. L. REV. at 704. I am not sure Horwitz is right in his stimulating claim, see MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: CRISIS OF LEGAL ORTHODOXY ch. 4 (Oxford 1992), that there was a change of mind here, and that there are two Holmeses, an earlier one supporting just external standards, and a later one who sees this cannot be done, and that the change is related to a disappointment from a hope that tradition and development could be integrated in the common law, and from a later development of the stance of judicial deference to legislation. I tend to think that Holmes himself did not change his mind on the interrelationships between law and politics, and that he had always been an advocate of deference to legislative will. Since most of his seemingly-absolute statements are written in this way to be clear and provocative, I do not read his more nuanced approach to objective standards as a change of mind or heart, but as a reflection of the need, in that context, to emphasize the dangers of presenting policy questions as dictated by necessities.
117. See, e.g., Robert W. Gordon, Holmes' Common Law as Legal and Social Science, 10 HOFSTRA L. REV. 719 (1982) (discussing the internal inconsistencies of The Common Law); H.L. A. HART, Diamonds and String: Holmes on the Common Law, supra note 10, at 281-84 (criticizing Holmes's theory of objective liability in the criminal context as a fallacy). See generally MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: CRISIS OF LEGAL ORTHODOXY (Oxford
118. See, e.g., Robert W. Gordon, Holmes' Common Law as Legal and Social Science, 10 HOFSTRA L. REV. 719 (1982) (discussing the internal inconsistencies of The Common Law); H.L. A. HART, Diamonds and String: Holmes on the Common Law, supra note 10, at 281-84 (criticizing Holmes's theory of objective liability in the criminal context as a fallacy). See generally MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: CRISIS OF LEGAL ORTHODOXY (Oxford 1992) (chronicling Holmes's shift from espousing an objective standard to embracing a more subjective approach).
119. See, e.g., Robert W. Gordon, Holmes' Common Law as Legal and Social Science, 10 HOFSTRA L. REV. 719 (1982) (discussing the internal inconsistencies of The Common Law); H.L. A. HART, Diamonds and String: Holmes on the Common Law, supra note 10, at 281-84 (criticizing Holmes's theory of objective liability in the criminal context as a fallacy). See generally MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: CRISIS OF LEGAL ORTHODOXY (Oxford 1992) (chronicling Holmes's shift from espousing an objective standard to embracing a more subjective approach).
120. Holmes, The Path of the Law, supra note 2, at 474-5, 78 B.U. L. REV. at 712-13 (observing that the problem with Austin's efforts a general jurisprudence were that he did not know enough English law and that studying Roman law is not useful for understanding the different subject of American law).
121. See id. at 474, 78 B.U. L. REV. at 712.
122. See id. at 476, 78 B.U. L. REV. at 714.
123. See id. at 460, 78 B.U. L. REV. at 701 ("I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer.").
124. See id. at 459, 78 B.U. L. REV. at 700. I take Holmes's usage of "moral" here to refer to ideal morality, not merely to the moral conventions of his age. To me, this expression is one of the many contexts in which he forgets the constraints of his alleged moral skepticism and lapses into realistic talk about morality. The passage, however, makes sense even if we read it to mean only that the law develops in ways that reflect the moral sensibilities of the time and if we abstain from evaluating these sensibilities from the outside.
125. A candid self-description is the 1915 paper Ideals and Doubts. See Holmes, Ideals and Doubts, supra note 49. Holmes admits that he leaves ultimate values on the side, concedes that we should seek to make the world more like we desire, expresses serious doubts about the ideas of social reform vented in his day and their chances, and recommends a more cautious improvement of utility where we agree on the values and goals of legal reform. See id. at 393-94. The mixture between conservative, skeptic and romantic reemerges in the statement that the real hope for change lies not in "tinkering with the institution of property" but in "taking in hand life and trying to build a race." See id. at 393. This naturally sounds very ominous indeed to post-World War II generations, but Holmes's wish to improve "the race" was "universalistic" and applied to humanity, or at least the United States citizenry, as a whole. Clearly, the idea was not that one particular race was superior and may exterminate others, or even should seek to make all others in its image. Holmes adds in Ideals and Doubts: "The notion that with socialized property we should have women free and a piano for everybody seems to me an empty humbug." Id. We see here the same ambivalence between skepticism and the substantive endorsement of values and ways of promoting them characterizing much of Holmes's thought.
126. Horwitz is of course correct in saying that Holmes treats judge-made law and legislation as different processes. See HORWITZ, supra note 81, at 125-28 (discussing Holmes's rejection of strict liability). While judge-made law is an interesting combination of logic, tradition, and the wish to reach desirable results - both social and in the instant case - legislation is a conscious and deliberate attempt at self-regulation. I think Horwitz is wrong to conclude that the awareness that legislation by both courts and legislatures involves social goals entails that the distinction between law and politics collapses or that Holmes thought so. See id. at 128. Although Holmes saw the similarities between legislative and judicial lawmaking and objected to systemic efforts to deny them, he also stressed the differences between the two processes.
127. See Holmes, The Path of the Law, supra note 2, at 460, 78 B.U. L. REV. at 701 ("No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact . . . because the community would rise in rebellion and fight . . . .").
128. See id. at 478, 78 B.U. L. REV. at 715 ("[T]he man of the future is the man of statistics and the master of economics."); see also Oliver Wendell Holmes, Learning and Science, Speech at a Dinner of the Harvard Law School Association in Honor of Professor C.C. Langdell, (June 25, 1895) SPEECHES 67 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387, 388 (Max Lerner, ed. 1943) ("An ideal system of law should draw its postulates and its legislative justifications from science."). In Law in Science and Science in Law, Holmes tries to illustrate how more rational examination may improve the legal system. See Oliver Wendell Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 462 (1899).
129. See id. at 478, 78 B.U. L. REV. at 715 ("[T]he man of the future is the man of statistics and the master of economics."); see also Oliver Wendell Holmes, Learning and Science, Speech at a Dinner of the Harvard Law School Association in Honor of Professor C.C. Langdell, (June 25, 1895) SPEECHES 67 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387, 388 (Max Lerner, ed. 1943) ("An ideal system of law should draw its postulates and its legislative justifications from science."). In Law in Science and Science in Law, Holmes tries to illustrate how more rational examination may improve the legal system. See Oliver Wendell Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 462 (1899).
130. See id. at 478, 78 B.U. L. REV. at 715 ("[T]he man of the future is the man of statistics and the master of economics."); see also Oliver Wendell Holmes, Learning and Science, Speech at a Dinner of the Harvard Law School Association in Honor of Professor C.C. Langdell, (June 25, 1895) SPEECHES 67 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387, 388 (Max Lerner, ed. 1943) ("An ideal system of law should draw its postulates and its legislative justifications from science."). In Law in Science and Science in Law, Holmes tries to illustrate how more rational examination may improve the legal system. See Oliver Wendell Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 462 (1899).
131. See id. at 478, 78 B.U. L. REV. at 715 ("[T]he man of the future is the man of statistics and the master of economics."); see also Oliver Wendell Holmes, Learning and Science, Speech at a Dinner of the Harvard Law School Association in Honor of Professor C.C. Langdell, (June 25, 1895) SPEECHES 67 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387, 388 (Max Lerner, ed. 1943) ("An ideal system of law should draw its postulates and its legislative justifications from science."). In Law in Science and Science in Law, Holmes tries to illustrate how more rational examination may improve the legal system. See Oliver Wendell Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443, 462 (1899).
132. In Ideals and Doubts, Holmes concludes that questions of legal reform usually involve questions of values and questions of the means used to attain the goals and that logic does not help much with the former. Legislation and adjudication often overlook the question of whether the measure proposed is indeed helpful and what its costs are. See Holmes, Ideals and Doubts, supra note 49, at 394.
133. This is a consistent position with Holmes, appearing first in The Common Law where he comes out against Kant's ideas that people should not treat others as means. See OLIVER WENDELL HOLMES, THE COMMON LAW reprinted in THE ESSENTIAL HOLMES, supra note 4, at 248-49 ("No society has ever admitted that it could not sacrifice individual welfare to its own existence."). He repeats this idea in Ideas and Doubts. See Holmes, Ideas and Doubts, supra note 49, at 392. In 1915, Holmes notes with approval the return to a quest for the "ultimate question of worth," but doubts del-Veccio's neo-Kantian approach. See id.
134. This is a consistent position with Holmes, appearing first in The Common Law where he comes out against Kant's ideas that people should not treat others as means. See OLIVER WENDELL HOLMES, THE COMMON LAW reprinted in THE ESSENTIAL HOLMES, supra note 4, at 248-49 ("No society has ever admitted that it could not sacrifice individual welfare to its own existence."). He repeats this idea in Ideas and Doubts. See Holmes, Ideas and Doubts, supra note 49, at 392. In 1915, Holmes notes with approval the return to a quest for the "ultimate question of worth," but doubts del-Veccio's neo-Kantian approach. See id.
135. This is a consistent position with Holmes, appearing first in The Common Law where he comes out against Kant's ideas that people should not treat others as means. See OLIVER WENDELL HOLMES, THE COMMON LAW reprinted in THE ESSENTIAL HOLMES, supra note 4, at 248-49 ("No society has ever admitted that it could not sacrifice individual welfare to its own existence."). He repeats this idea in Ideas and Doubts. See Holmes, Ideas and Doubts, supra note 49, at 392. In 1915, Holmes notes with approval the return to a quest for the "ultimate question of worth," but doubts del-Veccio's neo-Kantian approach. See id.
136. I claim that this is the basis of Holmes's protection of free speech. He does indeed offer a rationale for the right different from the one offered by Brandeis. Cf. Pnina Lahav, Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech, 4 J.L. & POL. 451 (1988).
137. In The Law, Holmes relates with approval the different morsels of wisdom proffered to him by two wise and able lawyers. The first said it was important that he should not know too much law; the other said that the business of the lawyer is to know law. See Oliver Wendell Holmes, The Law (Feb. 5, 1885), reprinted in THE ESSENTIAL HOLMES supra, note 4, at 221, 223.
138. In The Law, Holmes relates with approval the different morsels of wisdom proffered to him by two wise and able lawyers. The first said it was important that he should not know too much law; the other said that the business of the lawyer is to know law. See Oliver Wendell Holmes, The Law (Feb. 5, 1885), reprinted in THE ESSENTIAL HOLMES supra, note 4, at 221, 223.
139. See id. at 222-23.
140. See Holmes, The Path of the Law, supra note 2, at 478, 78 B.U. L. REV. at 715 ("The remoter and more general aspects of the law are those which give it universal interest.").
141. Here is how Holmes describes the essence of "being civilized": "[I]t is most desirable . . . that he should have laid in the outline of the other sciences, as well as the light and shade of his own; that he should be reasonable, and see things in their proportion. Nay, more, that he should be passionate, as well as reasonable -that he should be able not only to explain, but to feel; that the ardors of intellectual pursuit should be relieved by the charms of art, should be succeeded by the joy of life become an end in itself." Holmes, The Law, supra note 95, at 224.
142. H.L.A. HART, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 GA. L. REV. 969, reprinted in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 123, 123 (observing that this preoccupation goes almost to the point of obsession).
143. H.L.A. HART, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 GA. L. REV. 969, reprinted in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 123, 123 (observing that this preoccupation goes almost to the point of obsession).
144. See id. at 123-24 (quoting Holmes, John Chipman Gray, and Karl Llewellyn).
145. See id. at 124 ("In de Tocqueville's famous words, 'scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.'").
146. See OLIVER WENDELL HOLMES, THE COMMON LAW ch. 1, 35-36 (1881): [I]n substance, the growth of the law is legislative. And this in a deeper sense than that what the courts declare, to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practices and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis.
147. See Holmes, The Path of the Law, supra note 2, at 465-66, 78 B.U. L. REV. at 705-06 (calling for "a more conscious recognition of the legislative function of the courts").
148. I believe this analysis permits seeing most of Holmes's decisions as consistent. It explains the habeas corpus decisions, the free speech and labor-union cases, and his rejection of all forms of lynching in Frank v. Mangum, 237 U.S. 309 (1915) (Holmes, J. dissenting).
149. However, Holmes was pleased about his decision in Buck v. Bell, 274 U.S. 200 (1927), not simply because he upheld legislation he thought was reasonable. He thought it was a good idea to "improve the race." On the other hand, despite his expression of hope that he did not decide against the Sherman Act because he thought it was stupid, the decision is hard to square with his general position of self-restraint.
150. See H.L.A. HART, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, supra note 99, at 126-32 (explaining how, under this view, judges do not decide cases impartially).
151. See id. at 132-44 (explaining how, under this view, impartial judges adhere to existing law).
152. The occasion for Hart's paper was the emergence of a new American version of the noble dream theory expounded by Ronald Dworkin and the powerful, sophisticated articulation of the "nightmare" vision by scholars in the CLS school, notably Duncan Kennedy.
153. In his Law and the Court speech, Holmes complains that he gets letters accusing him and his colleagues of being corrupt and tools of the corrupt money power. See Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb 15, 1913) SPEECHES 98, 99 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387, 388 (Max Lerner, ed. 1943). He adds, "I admit that it makes my heart ache. It is very painful, when one spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound, to know that many see sinister motives and would be glad of evidence that one was consciously bad." Id. He continues, true to himself, "But we must take such things philosophically and try to see what we can learn from hatred and distrust and whether behind them there may be some germ of inarticulate truth." Id.
154. In his Law and the Court speech, Holmes complains that he gets letters accusing him and his colleagues of being corrupt and tools of the corrupt money power. See Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb 15, 1913) SPEECHES 98, 99 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387, 388 (Max Lerner, ed. 1943). He adds, "I admit that it makes my heart ache. It is very painful, when one spends all the energies of one's soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound, to know that many see sinister motives and would be glad of evidence that one was consciously bad." Id. He continues, true to himself, "But we must take such things philosophically and try to see what we can learn from hatred and distrust and whether behind them there may be some germ of inarticulate truth." Id.
155. Occasionally, however, enforcing the letter of the law would cause serious injustice. In such cases, judges should decide whether it is better to modify the law to permit a just result, or to create injustice in the case in order to maintain the integrity of the law. Holmes's detailed analyses of cases in The Common Law contain numerous examples in which judges did one or the other, and in which Holmes criticized or applauded their decisions.
156. See generally Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb. 15, 1913), SPEECHES 98 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387 (Max Lerner, ed. 1943). Holmes is aware that when the law is unclear, it is inevitable that the disappointed side will feel wronged. When parties come to a court to ask a favor, and the court decides against them, the parties call the decision wicked. Holmes complains that the judge often "forgets that what seems to him to be first principles are believed by half his fellow men to be wrong." See id. at 390. It may come as no surprise that Holmes thought that judicial review over Congressional legislation was not essential, and that the court only needed the power to determine the contours of federalism so that the states would not undermine the necessary functions of the Union.
157. See generally Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb. 15, 1913), SPEECHES 98 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 387 (Max Lerner, ed. 1943). Holmes is aware that when the law is unclear, it is inevitable that the disappointed side will feel wronged. When parties come to a court to ask a favor, and the court decides against them, the parties call the decision wicked. Holmes complains that the judge often "forgets that what seems to him to be first principles are believed by half his fellow men to be wrong." See id. at 390. It may come as no surprise that Holmes thought that judicial review over Congressional legislation was not essential, and that the court only needed the power to determine the contours of federalism so that the states would not undermine the necessary functions of the Union.
158. Lochner v. New York, 198 U.S. 45 (1905) (Holmes J., dissenting). 112 Id.
159. See, e.g., Oliver Wendell Holmes, Book Review, 14 AM. L. REV. 233, 234 (1880) (reviewing Langdell's SUMMARY OF THE LAW OF CONTRACTS and coining the now-famous slogan, "[t]he life of the law has not been logic; it has been experience"); Letter from Oliver Wendell Holmes, Jr., to Sir Frederick Pollock (Apr. 10, 1881), in 1 Holmes-Pollock Letters 16-17 (Mark DeWolfe Howe ed., 1941) ("[Langdell's] explanations and reconciliations of the cases would have astonished the judges who decided them.").
160. See, e.g., Oliver Wendell Holmes, Book Review, 14 AM. L. REV. 233, 234 (1880) (reviewing Langdell's SUMMARY OF THE LAW OF CONTRACTS and coining the now-famous slogan, "[t]he life of the law has not been logic; it has been experience"); Letter from Oliver Wendell Holmes, Jr., to Sir Frederick Pollock (Apr. 10, 1881), in 1 Holmes-Pollock Letters 16-17 (Mark DeWolfe Howe ed., 1941) ("[Langdell's] explanations and reconciliations of the cases would have astonished the judges who decided them.").
161. Oliver Wendell Holmes, Learning and Science, Speech at a Dinner of the Harvard Law School Association in Honor of Professor C.C. Langdell (June 25, 1895), SPEECHES 67, 67 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 34, 35 (Max Lerner, ed. 1943).
162. Oliver Wendell Holmes, Learning and Science, Speech at a Dinner of the Harvard Law School Association in Honor of Professor C.C. Langdell (June 25, 1895), SPEECHES 67, 67 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 34, 35 (Max Lerner, ed. 1943).
163. See id.
164. See Holmes, The Path of the Law, supra note 2, at 467, 78 B.U. L. REV. at 707.
165. Holmes thought that long dicta, especially of the scholarly sort, did not belong in judicial opinions. See Letter from Oliver Wendell Holmes to Harold Laski (Jan. 16, 1918), in 1 Holmes-Laski Letters, 1916-1935, at 128 (Mark DeWolfe Howe ed., 1941) (criticizing Brandeis for including an historical review in an opinion). A rare exception to this principle can be found in Holmes's dissent in Plant v. Woods, 176 Mass. 492, 504 (1900) (Holmes, J., dissenting).
166. Holmes thought that long dicta, especially of the scholarly sort, did not belong in judicial opinions. See Letter from Oliver Wendell Holmes to Harold Laski (Jan. 16, 1918), in 1 Holmes-Laski Letters, 1916-1935, at 128 (Mark DeWolfe Howe ed., 1941) (criticizing Brandeis for including an historical review in an opinion). A rare exception to this principle can be found in Holmes's dissent in Plant v. Woods, 176 Mass. 492, 504 (1900) (Holmes, J., dissenting).
167. See Plant v. Woods, 176 Mass. 492, 504 (1900) (Holmes, J., dissenting) ("When a general question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, however strong his conviction may be, should thereafter accept the law from the majority and leave the remedy to the Legislature, if that body sees fit to interfere"). In Commonwealth v. Perry, 155 Mass. 117, 123 (1891), one of his infrequent dissents while on the Massachusetts state court, Holmes carefully explained his reasons for writing an opinion to support his dissent.
168. See Plant v. Woods, 176 Mass. 492, 504 (1900) (Holmes, J., dissenting) ("When a general question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, however strong his conviction may be, should thereafter accept the law from the majority and leave the remedy to the Legislature, if that body sees fit to interfere"). In Commonwealth v. Perry, 155 Mass. 117, 123 (1891), one of his infrequent dissents while on the Massachusetts state court, Holmes carefully explained his reasons for writing an opinion to support his dissent.
169. Holmes, Ideals and Doubts, supra note 49, at 2 (noting that a judge's "first business is to see that the game is played according to the rules whether I like them or not").
170. See Oliver Wendell Holmes, Sidney Bartlett, Answer to Resolutions of the Bar, Boston (Mar. 23, 1889), reprinted in THE ESSENTIAL HOLMES, supra note 4, at 220 (expressing pleasure that Bartlett was content to remain an advocate to the end, and saying that if one does one's task with one's might, he is on the road to fulfilling the "mysterious ends of the universe"); Holmes, The Law, supra note 95 (stating that "every calling is great when greatly pursued" but that lawyering is the best way "to plunge . . . deep in the stream of life . . . share its passions, its battles, its despair, its triumphs, both as witness and as actor"); Holmes, The Use of Law Schools, supra note 29 (presenting law as a branch of human knowledge "which is more immediately connected with all the highest interest of man than any other which deals with practical affairs").
171. See Oliver Wendell Holmes, Sidney Bartlett, Answer to Resolutions of the Bar, Boston (Mar. 23, 1889), reprinted in THE ESSENTIAL HOLMES, supra note 4, at 220 (expressing pleasure that Bartlett was content to remain an advocate to the end, and saying that if one does one's task with one's might, he is on the road to fulfilling the "mysterious ends of the universe"); Holmes, The Law, supra note 95 (stating that "every calling is great when greatly pursued" but that lawyering is the best way "to plunge . . . deep in the stream of life . . . share its passions, its battles, its despair, its triumphs, both as witness and as actor"); Holmes, The Use of Law Schools, supra note 29 (presenting law as a branch of human knowledge "which is more immediately connected with all the highest interest of man than any other which deals with practical affairs").
172. See Oliver Wendell Holmes, Sidney Bartlett, Answer to Resolutions of the Bar, Boston (Mar. 23, 1889), reprinted in THE ESSENTIAL HOLMES, supra note 4, at 220 (expressing pleasure that Bartlett was content to remain an advocate to the end, and saying that if one does one's task with one's might, he is on the road to fulfilling the "mysterious ends of the universe"); Holmes, The Law, supra note 95 (stating that "every calling is great when greatly pursued" but that lawyering is the best way "to plunge . . . deep in the stream of life . . . share its passions, its battles, its despair, its triumphs, both as witness and as actor"); Holmes, The Use of Law Schools, supra note 29 (presenting law as a branch of human knowledge "which is more immediately connected with all the highest interest of man than any other which deals with practical affairs").
173. Holmes, The Profession of the Law, supra note 1 ("How can the laborious study of a dry and technical system, the greedy watch for clients and practice of shopkeepers' arts, the mannerless conflicts over often sordid interests, make out a life?").
174. See Oliver Wendell Holmes, George Otis Shattuck, Answer to Resolutions of the Bar, Boston (May 29, 1897), SPEECHES 56, 70-74 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES, HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 37 (Max Lerner, ed. 1943).
175. See Oliver Wendell Holmes, George Otis Shattuck, Answer to Resolutions of the Bar, Boston (May 29, 1897), SPEECHES 56, 70-74 (1913), reprinted in THE MIND AND FAITH OF JUSTICE HOLMES, HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 37 (Max Lerner, ed. 1943).
176. See Holmes, The Law, supra note 95 ("The law is made by the Bar, even more than by the Bench.").
177. See Holmes, The Path of the Law, supra note 2, at 467, 78 B.U. L. REV. at 707 (noting judges' failure to recognize their duty to weigh considerations of social advantage).
178. As noted above, however, Holmes was not always clear about the implications of law as a social science to actual litigation and adjudication. In addition to his general distaste for facts, it is notable that Holmes's dissent in Lochner v. New York, 198 U.S. 45 (1905) (Holmes, J., dissenting), unlike that of the other dissenters, did not rely on social facts. If one does not need to show research, one may not need a Brandeis brief.
179. See Holmes, The Path of the Law, supra note 2, at 467, 78 B.U. L. REV. at 707 (discussing Story and stating that "he has done more than any other English-speaking man in this century to make the law luminous and easy to understand").
180. See, e.g., Oliver Wendell Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443 (1899); Holmes, The Use of Law Schools, supra note 29, at 35.
181. See, e.g., Oliver Wendell Holmes, Law in Science and Science in Law, 12 HARV. L. REV. 443 (1899); Holmes, The Use of Law Schools, supra note 29, at 35.
182. See Holmes, The Path of the Law, supra note 2, at 475, 78 B.U. L. REV. at 712 (mentioning Pollock, Ames and Thayer).
183. See Oliver Wendell Holmes, Holdsworth's English Law, 25 L.Q. Rev. 412 (1909), in which Holmes expresses appreciation for Holdsworth's scholarly achievements and his skepticism about the ability of science to provide information about complex social processes. Due to a lack of information about complex social processes, it is both inevitable and justifiable for courts and individuals to follow existing rules (even those with a weak justification) until they know more about their ideals.
184. In fact, he wrote what many consider the greatest American work of legal scholarship when he was a full-time lawyer.
185. For a powerful account of this tension, see CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES (Austin Sarat & Stuart Scheingold, eds., Oxford 1998).
186. Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
187. 274 U.S. 200, 207 (1927) (Holmes, J., dissenting).
188. 410 U.S. 113 (1973).
189. See ALBERT O. HIRSCHMAN, THE PASSIONS AND THE INTERESTS (1977).
190. See, e.g., Harry G. Frankfurt, Equality as a Moral Idea, in THE IMPORTANCE OF WHAT WE CARE ABOUT (1988).