Oliver wendell holmes and worksheet

I handed out the following worksheet, on "The Path of the Law" in class on 10/13. I want to give a few biographical details of Holmes' life leading to the authorship of this famous law review essay and then go over the worksheet.

Biographical Details

Holmes was born in 1841 in Boston. His father was a medical doctor and writer, achieving regional, if not national, notoriety through his columns in the (new) Atlantic Monthly magazine beginning in 1857 and later collected into a book called The Autocrat of the Breakfast Table. His mother was the daughter of a notable local judge, and his paternal grandfather was an Orthodox Congregational clergyman in the Boston area. Holmes' father, however, had given up Orthodox (or Trinitarian) Christianity and had become an early Unitarian, a path which Holmes also followed. In addition, the Transcendentalists (Emerson, Ripley, Hedge, etc) were growing up in the Boston environs in the 1830s, thus presenting a rather eclectic philosophical mix in Holmes' "deep background." He seems not to have been interested in religious discussions, though he did extensive reading in philosophy in his early and middle years.

Holmes attended Harvard, graduating in 1861 in military uniform, and then headed out to the Civil War. He was wounded three times in the War, in 1861 (Balls Bluff); 1862 (Antietam) and 1863 (just after Chancellorsville). Finally he mustered out in mid-1864 feeling overwhelmed by the sheer intensity of the war. However, throughout his later life he would use military terminology and imagery when speaking, and he would also begin to look at the War not so much as a senseless act of slaughter but as a time when mettle is tested and an invitation to live life at its fullest.

After the War Holmes returned to Boston, graduating from Harvard Law School in 1866, passing the MA bar in 1867 and then working in two Boston law firms for the next 14 years. He apparently left the first after only three years to go to work with his younger brother because he wanted to spend more time studying and less on client services. Holmes seemed, from all who knew him, as an extremely hard-working young man, whose mastery of the law was second to none. Beginning in 1867 he engaged in two tasks which occupied him for several years and which would form the basis for many insights in "The Path of the Law." First, he began to write case summaries and then articles for American Law Reports, a journal edited by a few friends in Boston. This required him to do vast reading not simply in cases needed for his practice but in areas that he never would "need" for client work. It also led to some early articles, in which he tried to apply a more systematic or Langdellian approach to organizing law. Then, he also edited the 12th edition of James Kent's Commentary on American Law. Even though America was nearly a century old at the time as a nation, there really were not more than two or three attempts to digest or explain American law, and Kent's was one. This task also required Holmes to master and try to organize cases and knowledge in American law that he would never "need," so to speak, in his work.

By the mid 1870s he had landed on an approach to law that seemed to "fit" him--he would not simply do a systematic approach, trying to see how legal doctrines fit in to an overall system, but he would begin to approach law historically. He would study deeply the common law origins of various doctrines (such as various torts or common carrier liability) and then try to understand how the doctrine evolved over time. He began to discover that legal doctrines do not just "evolve" naturally, whatever that might mean, but are strongly influenced in their growth by policy decisions along the way. Thus, though he was a historian, he would not want to use popular "organic-type" metaphors of growth of law. It also would mean that he gradually let go of the belief that the life of law was logic--rather it was experience, the joint experience of a nation or group of people trying to solve real problems. These insights made Holmes both a stellar legal historian but also a person committed to seeing how law developed in the context of political/social realities.

Finally, his extensive studies in the history of tort law convinced him that what was in view as tort law developed was a gradual separation of morality from law, and that what was really at stake was not moral fault for doing an act, considered from the perspective of the inner state of the person's mind, but fault from the perspective of a neutral or objective observer. These dual insights are represented/reflected in the first half of his "Path of the Law" essay. As a matter of fact, if we study Holmes' writing and research closely from 1867-1880 we have almost all the doctrines/insights that would be reflected in his 1897 article.

By virtue of a steady stream of articles in the 1870s, he was asked to give the Lowell Lectures in 1880, which were published as The Common Law in 1881. Two interesting facts about this American legal "classic" are that no one has read it through from cover to cover (or not many people) and that it has never gone out of print since being published in 1881. Probably as a result of these lectures he was hired to be a full-time professor at Harvard Law School (he taught some courses there in the 1870s) in 1881 and then, in 1882, was appointed to be an Associate Justice of the Supreme Judicial Court of Massachusetts, the oldest continually-operating court in the Western Hemisphere (established by the 1692 Massachusetts Royal Charter). He was still serving in that capacity 15 years later when he gave the lecture at Boston University which turned into this article.

The Worksheet

1. Holmes is often a brilliant, or at least entertaining, stylist. Give some examples of "personal illustrations" or "stories" that fill this article and what Holmes was trying to show by these illustrations.

I will provide two (also refer to question 5 below). The first is the reference to Professor Agassiz (p. 460) who was quoted as saying that the German population would rise (in rebellion) if you added two cents to the price of a glass of beer. Holmes tells this story in the context of his discussion of the difference between law and morality. Law and morality are like Venn diagrams for him, overlapping to be sure, but not neatly laid over each other. "This limit of power (i.e., law) is not coextensive with any system of morals." So, a law increasing the price of beer in Germany would be a law, but would certainly not have any "moral" flavor to it (i.e., it would simply be driven by economic concerns) or, alternatively, if it was a "moral" law (you need to drink less and so we are raising the price 2 cents), it would not be obeyed. Holmes actually doesn't tell us exactly for which reason he gives the analogy. But I hope you see his point.

A second comes later in the piece (474-75). He is talking about the importance of the study of jurisprudence, which he calls "law in its most generalized part." Every effort to reduce a case to a rule is an effort in jurisprudence, because you shave off the unnecessary factual features of each to get the "essence" of the rule you want to apply. He says, "One mark of a great lawyer is that he sees the application of the broadest rules." Then he tells the story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn (vessel for making butter). According to Holmes, the judge looked and looked in the statute book and cases for anything about breaking churns but was unable to find a case. Therefore he gave judgment to the defendant. A homey story to be sure, and possibly even apocryphal, but it enlivens an essay packed with ideas.

The next essay completes the worksheet.

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