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“fundamental maxim of the common law.”33

32 Id.
33 Riggs v. Palmer, 115 N.Y. 506, 511, 22 N.E. 188, 190 (1889). It is evident in both cases that
abstract “principles” are not the sole or even primary motivating reasons for decision.
In Riggs v. Palmer the statement of principle is drawn from a decision of the Supreme
Court in New York Mutual Life Insurance Co. v. Armstrong, 117 US 591 (1886), invalidating
payment under a life insurance policy to the murderer of the insured, where the policy
was taken out with the expectation of pro¬ting from the murder. The Riggs court fur-
ther cites precedent to the effect that “[a] will procured by fraud and deception, like
any other instrument, may be decreed void and set aside, and so a particular portion
of a will may be excluded from probate or held inoperative if induced by the fraud
or undue in¬‚uence of the person in whose favor it is” (Allen v. M™Pherson, 1 H. L.
Cas. 191; Harrison™s Appeal, 48 Conn. 202.), as well as direct authorities in the civil
law invalidating a bequest in the event of murder by the bene¬ciary. The opinion in
Henningsen is lengthy and complex, and here as well it appears that the particular facts
of the case, in the light of other relevant prior decisions, are far more persuasive on
the court than the broad statement of “principle,” in this case taken verbatim from lan-
guage in a dissent by Justice Frankfurter in United States v. Bethlehem Steel Corp., 315 US
289, 326 (1942) (denying relief to the federal government for inordinate pro¬ts from
wartime contracts): “the courts generally refuse to lend themselves to the enforcement of
Morals and Skepticism in Law 115

As Holmes wrote in 1870, “New cases will arise which will elude the
most carefully constructed formula. The common law, proceeding, as
we have pointed out, by a series of successive approximations “ by a
continual reconciliation of cases “ is prepared for this, and simply modi-
¬es the form of its rule.”34 Modi¬cation is not always smooth; Riggs and
Henningsen are cases in which opposing grounds of decision obliged a
dif¬cult choice. We may recall what Holmes said in Northern Securities v.
United States: “Great cases like hard cases make bad law. For great cases
are called great not by reason of their real importance in shaping the law
of the future but because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which makes
what previously was clear seem doubtful, and before which even well-
settled principles of law will bend.”35
Brian Bix has recently wondered whether contemporary positivism
helps with any real problem.36 It has not been notably successful in
addressing the core problem of contemporary law, deciding dif¬cult
and controversial cases, as it removes legal dif¬culty into the innately
intractable category of legal indeterminacy. If Dworkin is right about Hart™s
attempt to ¬x a comprehensive formula, then indeed there is such a thing
as sheer legal indeterminacy, and judges in problematic cases are forced

a ˜bargain™ in which one party has unjustly taken advantage of the economic necessities
of the other.”
By Holmes™s account, such statements are aspects of the reconcilation of decisions,
while the result is reached from facts of the particular case in light of available prece-
dent. He would maintain this understanding even where courts explicitly state otherwise,
which they do not in either Riggs or Henningsen. Dworkin does not claim that principles
are direct or primary reasons in such cases, only that lawyers and judges “make use
of ” them. Taking Rights Seriously, 22. Nevertheless, Dworkin™s argument rests on a strict
inductive model of legal decisions, seen in isolation “ what Frederick L. Will called the
“positive view of induction” “ which assumes that philosophical scrutiny of justi¬cation
questions can be carried out putting aside all considerations of how such questions came
into existence. Will, Induction and Justi¬cation (Ithaca and London: Cornell University
Press, 1974), 164“68.
34 Holmes, “Codes, and the Arrangement of the Law,” in Formative Essays, 80, and in
1 Collected Works, 213.
35 193 U.S. 197, 400 (1903). “Hard” cases, in this context, maintains its original meaning
as “cases that tug at the heartstrings.” Posner, Problems of Jurisprudence, 161 n. 1.
36 See Bix, “Legal Positivism,” 31: “If legal positivism is not about the importance of the sep-
arate and ˜scienti¬c™ study of law, or at least not about that today, one might wonder what
its purpose and meaning is. One suspects that legal positivism™s distinctiveness and its
point have become more elusive, even as it has become more established within English-
language analytical jurisprudence “ perhaps because it has become more established in
analytical jurisprudence.”
Holmes, Legal Theory, and Judicial Restraint
116

to “legislate” in the strong, absolute sense of the term. Hart has conceded
this point, af¬rming (in his famous postscript) a “picture of the law as in
part indeterminate or incomplete and of the judge as ¬lling the gaps by
exercising a limited law-creating discretion,” while insisting that judges™
powers “are interstitial as well as subject to many substantive constraints.”37

None the less, there will be points where the existing law fails to dictate any
decision as the correct one, and to decide cases where this is so the judge must
exercise his law-making powers. But he must not do this arbitrarily: that is he
must always have some general reasons justifying his decision and he must act
as a conscientious legislator would by deciding according to his own beliefs and
values.38

For the crucial problem of resolving dif¬cult cases, we are left with but
two alternatives in contemporary analytical theory: either there is “no
answer” within the law or there must be an appeal to moral principle,
inevitably in¬‚uenced by the judge™s own “beliefs and values.”
In a recent comment on the state of contemporary legal philosophy,
Dworkin bemoans that the strategic retreat of “inclusive” positivism has
reduced the appeal of positivism to maintaining an academic elite or
guild, separate and distinct from legal practice and the substantive ¬elds
of law, “a discipline that can be pursued on its own with neither back-
ground experience nor training in or even familiarity with any literature
or research beyond its own narrow world and few disciples.”39 I suggest
that positivism does exercise continuing in¬‚uence beyond academia, and
on contemporary modes of legal thinking. Its long shadow is cast over the
problem of constitutional interpretation, where text is viewed as supreme
and exhaustive.
When cases arise that defy any clear solution by reference either to the
text or its putative “original understanding,” there is an inescapable ten-
dency to endow constitutional language with “principle.” Holmes stands
virtually alone among major legal theorists in emphasizing that general
principles do not decide cases, they hide other motives for decision. They
hide a failure to confront the disentangling of speci¬c considerations in

37 Hart, The Concept of Law, 272“73.
38 Id., 273.
39 Dworkin, Justice in Robes, 213. Kuklick, in The Rise of American Philosophy, notes that the
professionalization of philosophy at mid-twentieth century radicalized the shift toward
technical specialized research whereby philosophy lost the synthesizing, comprehensive
function more characteristic of the period in which Holmes and his intellectual peers
¬‚ourished. Id., 565.
Morals and Skepticism in Law 117

the continuum of related disputes, and the cautionary policy of restraint
when no clear consensus can be found.
In the following chapters I turn to a condensed consideration of
Holmes™s judicial career. This is not intended as a comprehensive analysis;
major topics, such as free expression, are left out.40 Rather, I wish to show
the continuity between the theory and its application, even where it has
been subject to modi¬cation and change. Holmes was a con¬dent judge,
quick to impose his own view of the bearing of precedent. But despite
his frequent mention of “policy,” he remained attached to a theoretically
limited judicial role with regard to making it. Articulations of policy by
judges were fundamentally retrospective and connected to an evaluation
of prevailing community standards. Second, Holmes™s skepticism of gen-
eral propositions diverted him from the contemporary practice that has
come to be known as judicial “interest balancing.” He was aware that
competing social interests were increasingly involved in litigation, but
he sought to avoid choosing between them and remained faithful to the
early vision of case-speci¬c line drawing. Finally, he carried his method
into constitutional cases under the Fourteenth Amendment, and applied
it mutatis mutandis, despite the very different context. Holmes™s constitu-
tional restraint was rooted in his theory of the common law.
The idealized picture Holmes brought from his research was largely
retrospective; in that sense the law is “behind the times.” Judges were
engaged in looking backward to evaluate the relation between established
patterns of conduct to the general formulations of the emerging common
law. If this attitude sounds quaint in light of the current Court™s engage-
ment with contemporary issues, we ¬nd Holmes reassessing it soon after
his appointment to the bench. Many of the claims he would confront on
the Massachusetts high court were framed with an eye on the future, not
the past, and the courtroom struggle would become less concerned with
careful assessment of precedent and more with future “desires and inter-
ests.” This would require a method of distinguishing precedents from
interests, established patterns from proposed ones. It would often give rise
to his refrain that “general propositions do not decide concrete cases.”41

40 I have addressed this in an article on Holmes and Learned Hand, “Learned Hand and
the Great Train Ride,” 56 American Scholar 471 (1987).
41 E.g., Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, dissenting).
8

Judges, Principles, and Policy




Questions of policy are legislative questions, and judges are shy of reasoning
from such grounds. Therefore, decisions for or against the privilege, which
really can stand only upon such grounds, often are presented as hollow
deductions from empty general propositions like sic utere tuo ut alienum non
laedas, which teaches nothing but a benevolent yearning, or else are put as if
they themselves embodied a postulate of the law and admitted of no further
deduction, as when it is said that, although there is temporal damage, there
is no wrong; whereas, the very thing to be found out is whether there is a
wrong or not, and if not, why not.
O. W. Holmes, “Privilege, Malice, and Intent” (1894)


At the end of the anxious carriage ride with Fanny Holmes and George
Shattuck across East Cambridge on December 8, 1882, lay Holmes™s
appointment to the Supreme Judicial Court of Massachusetts “ the “SJC,”
as lawyers call it. It would present him with a large workload and broad,
basically unlimited appellate jurisdiction, ruling on all appeals, criminal
and civil. Much of the work was as mundane as any state court of its era,
ranging through crimes, injuries to body, property, and land, business
and domestic relations, and local regulation.
Holmes soon wrote Pollock, “No very great or burning questions
have been before me although a good many fairly interesting ones.”
Their correspondence reveals that “interesting” to Holmes meant capa-
ble of testing or con¬rming “some theories of [his] book.”1 The next
decade, as Morton Horwitz has noted,2 brought social and economic

1 Holmes to Pollock, November 2, 1884, in Holmes-Pollock Letters, 26.
2 Morton J. Horwitz, The Transformation of American Law 1870“1960, 65.

118
Judges, Principles, and Policy 119

turbulence that would be re¬‚ected in the cases before Holmes™s court
and in¬‚uence aspects of his theory, in particular, the battle between
business and organized labor, in which his intervention “ dispassionate,
driven entirely by his theoretical concerns “ would earn him the favor
of Theodore Roosevelt and a seat on the Supreme Court of the United
States.
During his twenty years on the SJC, Holmes was constantly attuned to
the application of his theory to the cases before him. Eager for a large
share of the workload, he was keen to demonstrate its immediate rele-
vance and to test and revise the theory where necessary.3 Such engage-
ment is consistent with the spirit of the theory. Holmes had become an
actor in the script he originally drafted in the decade of the 1870s, a script
that calls for ongoing editing; the law “is always approaching and never
reaching consistency. It is for ever adopting new principles from life at
one end, and it always retains old ones from history at the other which
have not yet been absorbed or sloughed off.”4
In one sense, Holmes entered this continuum as a component of the
law seeking to comprehend itself, a cog in the great engine, capable
of transformation as it gathered its destiny through self-re¬‚ection. In
another sense, he was in pursuit of an ever clearer understanding of the
correct judicial role and of its limitations. He was driven by an extraor-
dinary dual quest, for in¬‚uence over his colleagues and the verdict of
history as well as for objectivity and transparency in understanding and
exemplifying the judge™s proper place in historical context.
A conundrum for scholars has arisen from Holmes™s frequent remarks
about the in¬‚uence of “policy” on judicial decisions. Citing his extraju-
dicial writings, especially The Common Law and his essay “The Path of the
Law,” scholars have characterized Holmes as holding that “courts decide
˜[q]uestions of policy™” by choosing among competing “considerations of
what is expedient for the community concerned.”5 They have concluded
from this that he believed judges could do this in each case. But as Mark
Tushnet noted in 1976 after an exhaustive perusal of the entire body of
Massachusetts opinions, there is in his judicial writings hardly any explicit
weighing of competing policies and little evidence of Holmes carrying
out this putative program.


3 Patrick J. Kelley, “Holmes on the Supreme Court; The Theorist as Judge,” 275“352.
4 Holmes, “Common Carriers and the Common Law,” in Formative Essays, 223, and in
3 Collected Works, 75“6.
5 Rosenberg, Hidden Holmes, 43.
Holmes, Legal Theory, and Judicial Restraint
120

This is another example of the need to keep in mind the entire ¬‚ow
of Holmes™s thinking. Policy referred to the long-run effect of applying
community standards to congenital disputes, not to any immediate judi-
cial rationale for a particular decision. The point originated with the
challenge to the legacy of John Austin. The emphasis on policy, or more
precisely “social advantage,” derived from the early attack on analytical
classi¬cation, which he saw as supporting the practice of what has sub-
sequently been called “mechanical” jurisprudence, or the notion that
logic dictates the answers to judicial questions. This is the theme with
which The Common Law begins: “the life of the law has not been logic but
experience.”
Just as it was inevitable to Holmes that meanings change over time in
the language of the law, it is apparent to us that meanings have changed
for terms used by Holmes. Teasing out the drift and import of his use
of words such as “moral,” “policy,” and “principle,” and his own attitude
toward our present understanding of them, will occupy scholars as long
as Holmes™s words are considered apart from the entire development of
his thought. The passage at the head of this chapter carries an insight to
his evolving thought regarding policy and general propositions. It is from
an article written in 1894 as a revision to the general theory of external
standards, which he urged his fellow justices to study at the height of their
dispute over the struggle between business and labor.
The ¬rst prominent mention of policy is found in Holmes™s brief 1872
book notice, which was discussed in chapter 4. This was a review of the
article entitled “Law and Command” by Frederick Pollock, critical of
John Austin, and Holmes sought to establish his own share of credit for
launching a challenge to analytical jurisprudence. Here he summarized
a course of lectures in jurisprudence given to Harvard undergraduates in
the spring of 1872, engaging his own criticism of the Austinian scheme
of classi¬cation.
In these lectures Holmes elucidated his challenge to Austin™s project
of de¬ning all law as a system of duties or rights, terms that gave it a
false normative concreteness. Examples such as protective tariffs did not
create a duty, because “[t]he notion of duty involves something more than
a tax on a certain course of conduct.” He concluded with the observation
that would be developed in his 1873 essay, “The Theory of Torts,” that
legal liability derives not from logical inferences from a scheme of rights
and duties but from the gradual drawing of lines in litigation, such that
“[p]ublic policy must determine where the line is to be drawn. The rule of
the common law, requiring the owner of cattle to keep them on his land at
his peril, has been very properly abandoned in some of the western states,
Judges, Principles, and Policy 121

where the enclosure of their vast prairies is necessarily for a long time out
of the question.”6 Public policy is, in this context, the local community
standard applied re¬‚exively by the jury, which might differ from region
to region depending on prevailing conditions.
The 1873 article would take the subject further in explaining the
judge™s role in abstracting such policy from jury decisions. A comment
appears in the essay on common carriers that Holmes wrote six years
later in 1879, repeated in The Common Law, with a pointed reference to
“policy”:
[I]n substance the growth of the law is legislative. And this in a deeper sense
than that that which the courts declare to have always been the law is in fact
new. It is legislative in its grounds. The very considerations which the courts
most rarely mention, and always with an apology, are the secret root from which
the law draws all the juices of life. We 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 de¬nitely
understood views of public policy; most generally, to be sure, under our practice
and traditions, the unconscious result of distinctive preferences and inarticulate
convictions, but none the less traceable to public policy in the last analysis.7

This passage has derailed many commentators. At ¬rst glance it appears
to support the worst fears of Justice Scalia, handing an unlimited law-
making license to the common law judge. Many scholars have taken these
comments as promoting the judge as autonomous policy maker. Mark
Tushnet™s reading is that judges could base their judgments on broad
considerations of policy,8 such that he found it odd that Holmes consis-
tently refrained from engaging policy himself.9 For Tushnet, Holmes was
not following his own script: “[H]is opinions do not carry out The Common

6 “To leave the question to the jury for ever, is simply to leave the law uncertain.” Holmes,
“The Theory of Torts,” in Formative Essays, 119“20, and in 1 Collected Works, 328.
7 Holmes, “Common Carriers and the Common Law,” 631; in Formative Essays, 222“23, and
in 3 Collected Works, 75.
8 Tushnet, “The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial
Court,” 63 Virginia L. Rev. 975, 1012 (1977); “Once external standards are acknowledged
as controlling, a judge will ¬nd it easier to articulate reasons for choosing one such
standard rather than another. Since individual quirks of litigants no longer matter, only
competing questions of public policy remain and the judge can address them directly.”
Id. at 1013.
9 “Holmes believed judges to be capable of deciding questions of policy. But in his own
opinions, if two principles of public policy competed for recognition, and both seemed
reasonable, Holmes refrained from making explicit choices between the policies and
resorted to technicality and history of a very conceptual sort. Because Holmes knew that
these cases of con¬‚icting policy were the hardest and most signi¬cant, his opinions do
not carry out The Common Law™s implicit program of exposing the policies that justify
judicial decisions.” Id. at 1017.
Holmes, Legal Theory, and Judicial Restraint
122

Law™s implicit program of exposing the policies that justify judicial deci-
sions.”10
The explanation is that such policy is “the unconscious result of dis-
tinctive preferences and inarticulate convictions,” something different
from judges weighing policy preferences and consistent with Holmes™s
understanding of judicial restraint. The same passage continues:

And as the law is administered by able and experienced men, who know too much
to sacri¬ce good sense to the syllogism, it will be found that when ancient rules
maintain themselves in this way, new reasons more ¬tted to the time have been
found for them, and that they gradually receive a new content and at last a new
form from the grounds to which they have been transplanted. The importance
of tracing the process lies in the fact that it is unconscious, and involves the
attempt to follow precedents, as well as to give a good reason for them, and
that hence, if it can be shown that one half of the effort has failed, we are at
liberty to consider the question of policy with a freedom that was not possible
before.11

In a conservative reading, Holmes wants to show that judges do respond to
policy, but by following community-approved standards and precedents,
and where precedents derive from ancient rules, judges could and should
update the reasoning. He does not argue here that they should set the
policy so much as be aware of it and give it the expression that a jury “
and successive jury determinations “ cannot. A footnote to the end of
this paragraph refers the reader to the 1876 essay, “Primitive Notions In
Modern Law,” which Holmes had written as he sharpened his turn away
from Austin™s system. He follows the above passage, and concludes the
1879 essay, with a tacit reference to Austin:

What has been said will explain the failure of all theories which consider the
law only from its formal side, whether they attempt to deduce the corpus from
a priori postulates, or fall into the humbler error of supposing the science of law
to reside in the elegantia juris, or logical cohesion of part with part. The truth
is, that law hitherto has been, and it would seem by the necessity of its being
is always approaching and never reaching consistency. . . . It will become entirely
consistent only when it ceases to grow.12

Well before 1880 he was opposing what Horwitz calls the conceptualist tra-
dition,13 an approach that found support in the Austinian presumption

10 Id.
11 Holmes, “Common Carriers and the Common Law,” in Formative Essays, 223, and in 3
Collected Works, 75.
12 Formative Essays, 223; 3 Collected Works, 75“6.
13 Horwitz, Transformation of American Law 1870“1960, 54.
Judges, Principles, and Policy 123

of logical cohesion. Instead, he urged that analytical consistency is not
found in preexisting structure but worked in piecemeal. There is judi-
cial autonomy here, to be sure, but it is constrained. Before assessing its
extent, we should simply keep in mind that “policy,” in Holmes™s phraseo-
logy, has a special meaning. It ¬rst appears in opposition to the analyti-
cal attachment to logic, and refers to the underlying motivation behind
the standard of prudence. It takes shape from the nature of repeated
con¬‚icts or controversies. In its mature form it is the expression of an
eventual consensus, insofar as one may be found.
By the time of his 1894 article on privilege, Holmes had turned his
attention to the common habit of arguing from “empty general propo-
sitions,” as if an abstract consistency of doctrine were to be found in
time-honored legal maxims such as sic utere tuo ut alienum non laedas.14
As Holmes acquired experience on the state court, there appears a
sharpened recognition that in some cases lines must be drawn where
there is yet little or no consensus. Here the language of line drawing
persists, but in a context that implies a limitation to judicial declarations
of policy, one beyond which individual judges should withdraw, indeed
one whose outlines may be tantalizingly indistinct and easily hidden by
the “benevolent yearnings” of legal discourse mentioned in the article on
privilege. In Patnoude v. New York, New Haven & Hartford Railroad, decided
in 1901, the line drawing analogy can be seen to refer to this sort of inde-
terminate situation; we ¬nd it applied to something called “irreconcilable
desires.” Disposing of the case on technical grounds, Holmes nevertheless
explained in this case why he was disinclined toward weighing alternative
policy considerations.

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