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Looking at Holmes in the Mirror

Published online by Cambridge University Press:  28 October 2011

G. Edward White
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Extract

The ubiquity and endurance of Justice Holmes as a figure of historical interest has begun to rival the prominence of Holmes during his lifetime. It seems that each time the direction of American scholarship takes a new turn, a group of scholars emerges with some ‘fresh’ thoughts on Holmes; it seems that no matter how much Holmes has been dissected or analyzed, he provides commentators with something new to write about. The appearance of a series of scholarly assessments of Holmes in the 1980s provides another example of this phenomenon. In an article published in 1982 I noted that four lectures and symposia had been devoted to Holmes since 1980; in addition, two books devoted entirely to Holmes, another in which Holmes figures prominently, and a series of law review articles on Holmes have appeared in the decade. Once again the scholarly process of generational revisionism has included Holmes. In seeing themselves and their work anew commentators have also seen the image of Holmes in altered form.

Type
Review Essay
Information
Law and History Review , Volume 4 , Issue 2 , Fall 1986 , pp. 439 - 465
Copyright
Copyright © the American Society for Legal History, Inc. 1986

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References

1. White, G. Edward, ‘The Integrity of Holmes's Jurisprudence’, 10 Hofstra Law Review 633 (1982Google Scholar).

2. Pohlman, Howard, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Cambridge, Mass., 1984CrossRefGoogle Scholar); Burton, David H., Oliver Wendell Holmes, Jr. (New York, 1980Google Scholar).

3. White, G. Edward, Tort Law In America: An Intellectual History (New York, 1980Google Scholar).

4. Touster, Saul, ‘Holmes a Hundred Years Ago’, 10 Hofstra Law Review 673 (1982Google Scholar); Gordon, Robert, ‘Holmes's Common Law as Legal and Social Science’, 10 Hofstra Law Review 719 (1982Google Scholar); Burton, David H., ‘Justice Holmes and the Jesuits’, 27 American Journal Jurisprudence 32 (1982Google Scholar); Elliott, E. Donald, ‘Holmes and Evolution’, 13 Journal Legal Studies 113 (1984Google Scholar); Kelley, Patrick J., ‘A Critical Analysis of Holmes's Theory of Torts’, 61 Washington University Law Quarterly 681 (1983Google Scholar); Schwartz, Joan I., ‘Oliver Wendell Holmes's “The Path of the Law”: Conflicting Views of the Legal World’, 29 American Journal Legal History 235 (1985Google Scholar).

5. Benjamin Kaplan, ‘Encounters with O.W. Holmes, Jr.’; Patrick Atiyah, ‘The Legacy of Holmes Through English Eyes’; Vetter, Jan, ‘The Evolution of Holmes: Holmes and Evolution’, in Holmes and The Common Law: A Century Later (Occasional Pamphlet #10, Cambridge, Mass., Harvard Law School, 1983Google Scholar). The Kaplan, Atiyah, and Vetter lectures are hereinafter cited as Holmes and the Common Law, which is paged consecutively. Kellogg, Frederic R., The Formative Essays of Justice Holmes (Westport, 1984Google Scholar).

6. For a compilation of sources, see White, G. Edward, ‘The Rise and Fall of Justice Holmes’, 39 University of Chicago Law Review 51 (1971Google Scholar).

7. See Frederic R. Kellogg, supra note 5 at x-xii.

8. Rogat, Yosal, ‘Mr. Justice Holmes: A Dissenting Opinion’, 15 Stanford Law Review 3, 254 (1983Google Scholar); Rogat, Yosal, ‘The Judge As Spectator’, 31 University of Chicago Law Review 213 (1964CrossRefGoogle Scholar).

9. Yosal Rogat, 31 University of Chicago Review at 225.

10. See infra text at notes 68-71.

11. See White, G. Edward, Book Review, 59 Virginia Law Review 1130 (1973CrossRefGoogle Scholar).

12. See Howe, Mark DeWolfe, Mr. Justice Holmes: The Shaping Years (Cambridge, 1957Google Scholar); David H. Burton, supra note 2 at 13-50.

13. [Holmes, Oliver W.], ‘Book Notice’, 5 American Law Review 340, 341 (1871Google Scholar).

14. Holmes, Oliver W., ‘The Theory of Torts’, 7 American Law Review 652 (1873Google Scholar).

15. Mrs. Henry James to Henry James, Jr. (1873), quoted in Perry, Ralph Barton, The Thought and Character of William James 2 vols. (Boston, 1935) i, 519Google Scholar.

16. White, Mortin, Social Thought in America: The Revolt Against Formalism (Boston, 1947) 67–74Google Scholar.

17. Lochner v. New York, 198 U.S. 45, 76 (1905).

18. Howe, Mark DeWolfe, ‘The Positivism of Mr. Justice Holmes’, 64 Harvard Law Review 529 (1951Google Scholar); Hart, Henry, ‘Holmes's Positivism: An Addendum’, 64 Harvard Law Review 929 (1951Google Scholar); Howe, Mark DeWolfe, ‘Holmes's Positivism—A Brief Rejoinder’, 64 Harvard Law Review 937 (1931CrossRefGoogle Scholar).

19. Yosal Rogat, supra note 8.

20. Yosal Rogat, 31 University of Chicago Law Review at 255.

21. Mark DeWolfe Howe, supra note 12; Howe, Mark DeWolfe, Mr. Justice Holmes: The Proving Years (Cambridge, Mass., 1963Google Scholar).

22. 275 U.S. 66 (1927).

23. Gilmore, Grant, The Death of Contract (Columbus, 1974) 14-21, 37–43Google Scholar; Dawson, John P., Gifts and Promises (New Haven, 1980) 199–205Google Scholar. See also the discussion by Patrick Atiyah in Holmes and the Common Law, supra note 5 at 63-66.

24. Mark DeWolfe Howe, supra note 21 at 201-22. See also the discussion in Frederic Kellogg, supra note 5 at 48-57.

25. See Grant Gilmore, supra note 23; Gilmore, Grant, The Ages of American Law (New Haven, 1977Google Scholar); Tushnet, Mark, ‘The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial Court’, 63 Virginia Law Review 975 (1977CrossRefGoogle Scholar).

26. Grant Gilmore, supra note 25 at 49. In a footnote Gilmore suggested that while ‘some admirers of Holmes’ might take his portrait as ‘an attack on Holmes’, in his view Holmes, ‘to the extent that I can follow the dark outlines of his thought’, was ‘both a greater man and a more profound thinker than the mythical Holmes ever was’. Ibid. at 127.

27. Grant Gilmore, supra note 25 at 66.

28. See Teachout, Peter R., ‘Gilmore's New Book: Turning and Turning in the Widening Gyre’, 2 Vermont Law Review 229 (1977Google Scholar).

29. O'Fallon, James M., ‘Mr. Justice Holmes: A Dissenting Opinion—The Speech Cases’, 36 Stanford Law Review 1349 (1984Google Scholar).

30. Frederic R. Kellogg, supra note 5 at 4.

31. Ibid. at 6.

32. Ibid. at 7-10.

33. Ibid. at 37-42, 56.

34. Ibid.

35. Ibid.

36. Ibid. at 69.

37. Ibid. at 74.

38. Grant Gilmore, supra note 25 at 54.

39. For a discussion of Langdell's methodological assumptions, see Grey, Thomas, ‘Langdell's Orthodoxy’, 45 University Pittsburgh Law Review 1, 30–32 (1983Google Scholar).

40. Frederic R. Kellogg, supra note 5 at 57.

41. E.g. Note, ‘Holmes, Peirce, and Legal Pragmatism’, 84 Yale Law Journal 1123 (1975CrossRefGoogle Scholar).

42. Holmes to Sir Frederick Pollock, June 17, 1908, in Howe, Mark DeWolfe, ed., Holmes Pollock Letters 2 vols. (Cambridge, 1946) i: 139Google Scholar.

43. ‘Holmes never acknowledged any debt to [Charles] Peirce or for that matter to any one else.’ Gilmore, supra note 25 at 51. For an example of Holmes's sensitivity about having his work recognized, see Reid, John P., ‘Brandy in his Water: Correspondence Between Doe, Holmes, and Wigmore’, 57 Northwestern Law Review 522 (1962Google Scholar).

44. Patsone v. Pennsylvania, 232 U.S. 138, 144 (1914).

45. Benjamin Kaplan in Holmes and the Common Law, supra note 5 at 2.

46. Patrick Atiyah in ibid. at 40.

47. Jan Vetter in ibid. at 96, 97.

48. Benjamin Kaplan in ibid. at 8-9.

49. Holmes, Oliver W., ‘The Path of the Law’, 20 Harvard Law Review 457, 469 (1897Google Scholar).

50. Holmes, Oliver W., ‘Law in Science and Science in Law’, 23 Harvard Law Review 421 (1899Google Scholar)

51. G. Edward White, supra note 1.

52. Mark DeWolfe Howe, ‘The Positivism of Mr. Justice Holmes’, supra note 18.

53. ‘I look into my book in which I keep a docket of the decisions of the full court which fall to write, and find about a thousand cases …. A thousand cases, when one would have liked to study to the botton and to say his say on every question which the law ever has presented.’ Oliver W. Holmes, speech to the Bar Association of Boston, March 7, 1900, in Holmes, Oliver W., Collected Legal Papers (New York, 1920) 245Google Scholar.

54. Very little realist scholarship was directed at constitutional law. Compare the private law emphasis in Llewellyn, Karl, The Common Law Tradition: Deciding Appeals (Boston, 1960Google Scholar), the culmination of Llewellyn's scholarly efforts.

55. Frank, Jerome, Law and The Modern Mind (New York, 1930) 253Google Scholar.

56. ‘[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.’ Holmes in Abrams v. United States, 250 U.S. 616, 630 (1919) (dissent).

57. ‘I always have said that the rights of a given crowd are what they will fight for. I once heard the older Agassiz say of some place in Germany that there would be a revolution if you raise the price of a glass of beer.’ Holmes to Harold Laski, July 23, 1925 in Howe, Mark DeWolfe, ed., Holmes—Laski Letters 2 vols. (Cambridge, Mass., 1953) ii: 762Google Scholar.

58. ‘I never read a socialist yet from Karl Marx down, and I have read a number, that I didn't think talked drool.’ Holmes to Harold Laski in ibid. at i: 96.

59. On Moore see Schlegel, John H., ‘American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore’, 29 Buffalo Law Review 195 (1980Google Scholar).

60. Benjamin Kaplan in Holmes and the Common Law, supra note 5 at 17.

61. 249 U.S. 47 (1919).

62. Ibid. at 50-52.

63. Supra note 56.

64. 250 U.S. at 625-26.

65. Ibid. at 630.

66. 249 U.S. at 52.

67. 250 U.S. at 630.

68. Hart, Henry, ‘The Time Chart of the Justices’, 73 Harvard Law Review 84, 100 (1959Google Scholar).

69. Wechsler, Herbert, ‘Toward Neutral Principles of Constitutional Law’ 73 Harvard Law Review 1, 15 (1959Google Scholar).

70. Holmes in Buck v. Bell, 274 U.S. 200, 207 (1927).

71. Ibid. at 208.

72. Yosal Rogat, 15 Stanford Law Review at 305-06.

73. Jan Vetter in Holmes and the Common Law, supra note 5 at 86.

74. Noonan, John, Persons and Masks of the Law (New York, 1976Google Scholar).

75. G. Edward White, supra note 6 at 73.

76. Rabban, David M., ‘The First Amendment in its Forgotten Years’, 90 Yale Law Journal 514–80 (1981CrossRefGoogle Scholar).

77. Benjamin Kaplan in Holmes and the Common Law, supra note 5 at 12-14.

78. Ibid. at 15-16.

79. ‘[Holmes's] hesitancy to adopt final standards was a logical outcome of his skepticism. It reflected even more the essential humility which his investigations of cosmic truth had demanded of him.’ David H. Burton, supra note 2 at 142.

80. Benjamin Kaplan at 25.

81. Patrick Atiyah in ibid. at 27.

82. Jan Vetter in ibid. at 101.

83. Frederic R. Kellogg, supra note 5 at ix.