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The issue was whether a street railway might be liable when its ¬‚apping
canvas freight cover startled and injured a passing horse.

It is desirable that as far as possible people should be able to drive in the streets
without their horses being frightened. It is also desirable that the owners of land
should be free to make pro¬table and otherwise innocent use of it. More specif-
ically, it is desirable that a railway company should be free to use its tracks in any
otherwise lawful way for the carriage, incidental keeping and ¬nal delivery of any
lawful freight. A line has to be drawn to separate the domains of the irreconcilable
desires. Such a line cannot be drawn in general terms.15


14 Use your own property in such manner as not to injure that of another. Harry N. Scheiber,
“Comment: Public Rights and the Rule of Law,” 71 Cal. L. Rev. 217, 223 n. 26 (March
1984).
15 180 Mass. 119, 121“22, 61 N.E. 813, 814 (1901).
Holmes, Legal Theory, and Judicial Restraint
124

The implication is that the judge must recognize that where competing
policies are involved in opposing arguments, perhaps drawing on distinct
lines of precedent, the decision must not choose conclusively between
one or the other: such a line cannot be drawn in general terms. It should simply
mark the “separation” of alternative public choices, not yet reconciled by
consensus (or legislation) into a rule of law.
To draw the line more generally amounts to a practice that has in
fact gained wide acceptance, known in contemporary terms as judicial
“interest balancing.”16 Professor Horwitz claims that Holmes was the ¬rst
American legal theorist to articulate a “balancing test,” thus introducing
an era of “modernism” in American legal thought that would replace
logical deduction from general premises.17 What Holmes meant is quite
different from the practice of balancing as it has come to be known;
Alexander Aleinikoff has described the recent understanding as follows:

By a “balancing opinion,” I mean a judicial opinion that analyzes a constitutional
question by identifying interests implicated by the case and reaches a decision or
constructs a rule of constitutional law by explicitly or implicitly assigning values
to the identi¬ed interests.18

16 It is to be distinguished from an approach to adjudication that has been fashionable ever
since Dean Louis Henkin™s famous 1978 article on “constitutional balancing.” Henkin,
“Infallibility under Law: Constitutional Balancing,” 78 Colum. L. Rev. 1022 (1978).
17 Horwitz, Transformation of American Law 1870“1960, 56“57.
18 T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” 96 Yale L. J. 943,
945 (1987): “The customary way in which our contemporary legal system deals with com-
peting interests is through balancing. The con¬‚icting interests are identi¬ed, quanti¬ed,
and compared, and the weightier interest prevails. The process of interest balancing,
however, entails so many unconstrained judicial determinations that the subjective values
of the judge are necessarily called into play on multiple occasions during the balancing
process.” Girardeau A. Spann, in “Simple Justice,” 73 Georgetown L. J. 1041, 1060 (1985),
observes: “Judges cannot balance interests without recourse to their subjective prefer-
ences. Even judges with the best intentions will balance competing interests according to
their views about both the relative importance of those interests and the degree to which
each interest will be advanced or frustrated by particular outcomes in the case before
the court. Because this activity is essentially unconstrained, however, it is dif¬cult to see
how a judge could possibly engage in it without recourse to subjective values. When legal
doctrine calls for interest balancing, therefore, it does something that is seemingly coun-
terproductive. Because particular doctrinal applications are utterly dependent upon how
the balance is struck, the subjective preferences that doctrine is designed to guard against
necessarily drive application of the doctrinal rules. Once again, asking a judge to balance
competing interests is a lot like asking a judge to prevent unjust discrimination.” See
also Mark Tushnet, “Anti-Formalism in Recent Constitutional Theory,” 83 Mich. L. Rev.
1502 (1985); Stephen E. Gottlieb, “The Paradox of Balancing Signi¬cant Interests,” 45
Hastings L. J. 825 (1994); and Kathleen M. Sullivan, “Categorization, Balancing, and
Government Interests,” in Stephen E. Gottlieb, ed., Public Values in Constitutional Law
(Ann Arbor: University of Michigan Press, 1993).
Judges, Principles, and Policy 125

On the contrary, we should take Holmes™s observations in the Patnoude
case, as well as in the 1894 article, to mean that the line between the
two competing interests should not be resolved by weighing the com-
peting policies, but rather marked out on a case-by-case basis, “one
case at a time,” as Cass Sunstein puts it. In the context of a divided
appellate court, Sunstein refers to this as deciding close cases on the
basis of “incompletely theorized agreements.” In essence, the case must
be decided, but not on general grounds. Holmes might well have
approved what Sunstein elucidates as “agreements on concrete particu-
lars amid disagreements or uncertainty about the basis for those concrete
particulars.”19
Another remark by Holmes follows the last passage from Patnoude
quoted above: “Most of us regard the question as not too delicate to be
within our competence to decide without the aid of a jury.” The offhand-
edness of this comment, like many similar ones sprinkled throughout
his Massachusetts opinions, should not hide its pivotal place in under-
standing his approach to judicial restraint. Holmes, as discussed in the
previous chapter, began increasingly to put the experienced judge in the
place of the jury, as a connoisseur of prevailing standards of conduct. It
is a controversial move, but essential to his method. The idea of common
law juries ¬nding the relevant community standard lay behind Holmes™s
account of the growth of the law. It was the notion of the juries™ sense
of norms embedded in community practice that permitted Holmes to
develop and justify the idea of judicial rule making, not as policy mak-
ing in the contemporary sense but as “speci¬cation” through “successive
approximation.” This comment is a reference to his sense that the judge is
no less a representative of the community who must look to the standard
of the “reasonable” and “prudent” person.
A connoisseur is not necessarily an arbiter. It is important to the
scheme that a fresh assessment of policy is not wide open to the judge
in each individual case, but must take place in a gradual discovery, medi-
ated by the process of litigation, assuring its communal and consensual
nature. In this regard the common law is a delayed-action measuring
device, discovering and re¬‚ecting policy that has become ¬rmly enough
settled into the consciousness and conscience of judges and juries to
become a reasonably clear standard of dispute resolution. This should
explain why Holmes refrains from substantive discussion of policy in his


19 Sunstein, One Case at a Time, 11.
Holmes, Legal Theory, and Judicial Restraint
126

opinions or in anything approaching “assigning values to the identi¬ed
interests.”
It may also explain why, as Patrick J. Kelley demonstrates in his painstak-
ing analysis, Holmes hung on so doggedly to the universal theory of exter-
nalizing standards “ despite confronting persistent exceptions to that
hypothesis, cases involving undeniably subjective standards that persisted
in various forms of liability, such as libel and slander and malicious inter-
ference with business, and like Tasker v. Stanley where an independent
wrongdoer intervened between the act complained of and the alleged
harm.20
To keep the theory intact, Holmes found himself obliged to construct a
theory of exceptions, which he did in systematizing a common law of priv-
ilege. Privilege had the effect of removing an otherwise plausible claim
of injury from the possibility of recovery, like the privilege that protects
harmful statements concerning a former employee, given honestly but
provable to be false. It translates into justi¬able injury, or the various types
of harm that a defendant may legally do to a plaintiff because the law has
found a policy reason to permit it. This permitted evidence concerning
the actual state of a defendant™s mind, not translated into an “external”
standard of prudent conduct.21
Privilege is a feature of the common law process unaddressed in The
Common Law. Holmes had been aware of the problem, but had not for-
mulated it in terms of privilege; he seems not to have anticipated the
impact it might have on his theoretical scheme until repeatedly encoun-
tering cases like Tasker in the work of the Supreme Judicial Court. This
appears to be the main impetus for his publication in 1894 of the article
in the Harvard Law Review entitled “Privilege, Malice, and Intent.” In a
letter transmitting a copy to Sir Frederick Pollock, Holmes described the
article as “a supplement to the doctrine of the external standard.”22
Of signi¬cance to his later constitutional restraint, the problem of legal
privilege forced Holmes not merely to “supplement” his theory, but also


20 Tasker v. Stanley, 153 Mass. 148, 26 N.E. 417 (1891). Kelley notes how Holmes also
struggled to reconcile his theory of objective standards with the so-called last wrongdoer
doctrine, and wrote to Pollock explaining his theoretical adaptation and noting his
efforts to “get it in” the court™s opinions. Kelley, “Holmes on the Supreme Court: The
Theorist as Judge,” 308“13, 324“31. See also Tushnet, “The Logic of Experience: Oliver
Wendell Holmes on the Supreme Judicial Court,” 63 Virginia L. Rev. at 983“84.
21 Holmes, “Privilege, Malice, and Intent,” in Collected Legal Papers, 117.
22 Holmes to Pollock, April 2, 1894, in Holmes-Pollock Letters, vol. 1, p. 50.
Judges, Principles, and Policy 127

to address more explicitly the confusion that often arose where judges
decided close and controversial cases where the lines of prior doctrine
were obscure. Privilege was an area in which the appellate courts often
operated without adoption of, or induction from, an accretion of jury
determinations, as in the early negligence model. It was also rife with
controversies lacking consensus on either side of competing “irreconcil-
able desires.” While its stated purpose is to account for exceptions to the
theory of external standards, in this latter respect the article may also
be seen as a defense of the original common law line-drawing analogy by
extending it as a theory of restraint: as a warning against hiding subjective
policy preferences behind “empty general propositions.”
Privilege would play a prominent role in the most controversial matter
Holmes was called on to decide as a Massachusetts judge: the right of
union workers to engage in organized activity designed to persuade other
workers to join their cause. Vegelahn v. Guntner, decided in 1896, was an
early case in which Holmes found occasion to apply the analysis contained
in the 1894 article.23 Employees in a furniture factory had sought higher
wages and shorter hours, and their employer, Vegelahn, had refused and
responded by ¬ring their agent, Guntner. The employees went on strike,
and picketed to persuade others not to do business with Vegelahn. Fights
ensued, and Vegelahn sought an injunction.
Trial of the case was assigned to Holmes, sitting in equity session, who
enjoined all threats of violence but ruled that the picketing was lawful “so
far as it con¬ned itself to persuasion and giving notice of the strike.”24
Vegelahn appealed, and the case was heard by the full court, Holmes
and the six other justices. A majority of ¬ve held that picketing was “an
unlawful interference with the rights both of employer and of employed,”
rights that were “secured by the Constitution itself,” as employers had “a
right to engage all persons who are willing to work for [them] at such
prices as may be mutually agreed upon,” and “persons employed or seek-
ing employment have a corresponding right to enter into or remain in
the employment of any person or corporation willing to employ them.”25

23 167 Mass. 92, 44 N.E. 1077 (1896).
24 White, Justice Oliver Wendell Holmes, 287.
25 “Thus, the picketing was one means of intimidation, indirectly to the plaintiff, and
directly to persons actually employed, or seeking to be employed, by the plaintiff, and of
rendering such employment unpleasant or intolerable to such persons. Such an act is an
unlawful interference with the rights both of employer and of employed. An employer
has a right to engage all persons who are willing to work for him, at such prices as
Holmes, Legal Theory, and Judicial Restraint
128

The majority rested their ruling on a constitutional right of contractual
freedom. Holmes dissented, and his dissent summarizes key points of his
method:
[I]n numberless instances the law warrants the intentional in¬‚iction of temporal
damage because it regards it as justi¬ed. It is on the question of what shall amount
to a justi¬cation, and more especially on the nature of the considerations which
really determine or ought to determine the answer to that question, that judicial
reasoning seems to me often to be inadequate. The true grounds of decision are
considerations of policy and of social advantage, and it is vain to suppose that
solutions can be attained merely by logic and the general propositions of law
which nobody disputes. Propositions as to public policy rarely are unanimously
accepted, and still more rarely, if ever, are capable of unanswerable proof. They
require a special training to enable anyone even to form an intelligent opinion
about them. In the early stages of law, at least, they generally are acted on rather
as inarticulate instincts than as de¬nite ideas for which a rational defense is
ready.26

In this passage Holmes suggests that applicable policy may not be
embodied in clearly applicable precedents, but hidden, and he criticizes
“solutions . . . attained merely by logic and the general propositions of
law which nobody disputes.” This has seemed to some observers as a new
theme, but in fact it is not. It is traceable back to the critique of moral
language in his early work on Austin™s system of classi¬cation, to the rejec-
tion of moral language, and to the skepticism of general propositions.
The same matter had been explained in greater detail two years earlier in
Holmes™s article on privilege, which is worth repeating with the addition
of its ¬rst line:
But whether, and how far, a privilege shall be allowed is a question of 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.27

may be mutually agreed upon, and persons employed or seeking employment have
a corresponding right to enter into or remain in the employment of any person or
corporation willing to employ them. These rights are secured by the constitution itself.”
167 Mass. 97, 44 N.E. 1077.
26 167 Mass. 105“6, 44 N.E. at 1080 (Holmes, dissenting).
27 Holmes, “Privilege, Malice, and Intent,” in Collected Legal Papers, 120.
Judges, Principles, and Policy 129

When the full Supreme Judicial Court of Massachusetts overruled
Holmes, the majority relied on a general proposition, that constitution-
ally protected rights of “free contract” between employer and employee
were violated by the picketing strikers. Holmes objected that this erected
a general principle, albeit drawn from the Massachusetts Constitution,
in place of the inquiry of whether “there is a wrong or not, and if not,
why not.” In doing so the court had failed to reach the ultimate question
of whether this particular interference was privileged. This is, I suggest,
a form of the practice that Ronald Dworkin has warranted in claiming
that judges may appeal directly to rights and principles in dif¬cult cases,
interpreting the Riggs and Henningsen cases as legitimate examples of
doing so.
In both the Vegelahn dissent and in the article on privilege, Holmes
noted the problem of supporting the proposition of “free contract” as a
valid common law ground, by citing various common forms of permissi-
ble interference with rights of contract “ a point he would make again
with telling effect in the famous Lochner dissent.28 And he directed the
court™s attention to precedents establishing the privilege of economic
competition: “it has been the law for centuries that a man may set up a
business in a country town too small to support more than one, although
thereby he expects and intends to ruin someone already there, and suc-
ceeds in his intent.” The reason, Holmes took care to explain, was that
“the doctrine generally has been accepted that free competition is worth
more to society than it costs, and that on this ground the in¬‚iction of the
damage is privileged.”29

28 Lochner v. New York, 198 U.S. 59, 75“76 (1905).
29 167 Mass. at 106, 44 N.E. at 1080. The Vegelahn majority had gone on to consider the
claim of privilege by the workers in the following manner:

The defendants contend that these acts were justi¬able, because they were only seeking
to secure better wages for themselves, by compelling the plaintiff to accept their schedule
of wages. This motive or purpose does not justify maintaining a patrol in front of the
plaintiff ™s premises, as a means of carrying out their conspiracy. A combination among
persons merely to regulate their own conduct is within allowable competition, and is
lawful, although others may be indirectly affected thereby. But a combination to do
injurious acts expressly directed to another, by way of intimidation or constraint, either
of himself or of persons employed or seeking to be employed by him, is outside of
allowable competition, and is unlawful.

To this Holmes replied that the illustration of the man setting up a new business in
a country town shows that the policy of allowing free competition justi¬es the inten-
tional in¬‚icting of temporal damage, including the damage of interference with a man™s
business by some means, when the damage is done, not for its own sake, but as an
Holmes, Legal Theory, and Judicial Restraint
130

Over the next few years Holmes defended his analytical scheme to
his colleagues on the court, urging that they read his privilege article,
which some apparently did, as he would note in a grateful comment the
next time a similar matter arose. If indeed the majority found it persua-
sive, it was for judicial method only, not for the union cause. Four years
later the court decided Plant v. Woods, again involving the lawfulness of
combined union activity; there the union combined to strike and boycott
for a closed shop. In Plant the majority noted Holmes™s article and his
Vegelahn dissent, but ruled again against any right to strike. Dissenting
again, Holmes commented that it was on a “difference of degree” as to
the court™s application of his perspective, rather than a failure of the
court to confront the issue at all. “Much to my satisfaction, if I may say
so,” he wrote,

the court has seen ¬t to adopt the mode of approaching the question which I
believe to be the correct one, and to open an issue which otherwise I might have
thought closed. The difference between my brethren and me now seems to be a
difference of degree, and the line of reasoning followed makes it proper for me
to explain where the difference lies.30

What was the difference, and why was it so important to Holmes? In
his new dissent, Holmes de¬ned the issue that now divided him from the
majority as that of the legitimacy of the purpose of the threatened union
action. For the majority, the purpose was somehow akin to extortion “ like
obtaining “a sum of money [from the employer] which he is under no
legal obligation to pay.” For Holmes the purpose of striking for a closed
shop went no farther than, and indeed not as far as, the ultimate and
judicially acceptable purpose of raising wages. For him the purpose of
the union strike was to consolidate the union™s organization in order to
increase its effectiveness in the struggle for more pay:

I infer that a majority of my brethren would admit that a boycott or strike intended
to raise wages directly might be lawful, if it did not embrace in its scheme or intent
violence, breach of contract, or other conduct unlawful on grounds independent
of the mere fact that the action of the defendants was combined. A sensible

instrumentality in reaching the end of victory in the battle of trade. Given this, the
majority™s ratio decidendi was faulty, in that it focused on the element of combination and
relied on an irrelevant distinction between combinations among persons “to regulate
their own conduct” and those “expressly directed to another.” The majority view would
hold all in the latter category unlawful, including competitive combinations, rather
than focus as Holmes would on the purpose and manner in which the damage was
in¬‚icted.
30 176 Mass. 492, 504, 57 N.E. 1011, 1016 (1900) (Holmes, dissenting).
Judges, Principles, and Policy 131

workingman would not contend that the courts should sanction a combination
for the purpose of in¬‚icting or threatening violence or the infraction of admitted
rights. To come directly to the point, the issue is narrowed to the question of
whether, assuming that some purposes would be a justi¬cation, the purpose in
this case of the threatened boycotts and strikes was such as to justify the threats.
That purpose was not directly concerned with wages. It was one degree more
remote. The immediate object and motive was to strengthen the defendants™
society as a preliminary means to enable it to make a better ¬ght on questions of
wages or other matters of clashing interests.31

Holmes suggests that method is as important as outcome; the majority
had abandoned an abstract constitutional ground and resolved the case
as a choice between lines of precedent, openly making the difference a
“matter of degree.” It was an important matter of degree; the majority
opinion, while paying its respects to Holmes™s argument in the privilege
article and the Vegelahn dissent, had failed to come to grips with his con-
cern about the remoteness of purpose, and that failure was now a matter
of record. In abandoning the constitutional ground, the majority could
not hide its choice of precedents and render its decision, as with all high
court constitutional pronouncements, irreversible other than by constitu-
tional amendment. Flaws or inconsistencies in the court™s rationale were,
by following Holmes™s example, made plain.
We might note in passing that Holmes™s theory is remarkably cognizant
of the phenomenon of judicial reconsideration. With the judicial role
openly engaged in marking points in an always somewhat tentative line, a
single decision, even by a high appellate court, does not forever foreclose
the ongoing consensual process. Eventually, Holmes™s dissent in Plant
would become law. This attitude may appear na¨ve, or even dangerous,
±
especially when applied to the Supreme Court of the United States, a ¬nal
venue where controversies of national importance are expected to be
resolved and the United States Constitution authoritatively interpreted.
Yet even there, Holmes™s 1905 dissent in Lochner, parallel to the labor
cases in many respects, would eventually become law.32
If in the article on privilege he appeared to resign himself to the possi-
bility that judges with different economic sympathies might decide cases
differently, in both labor dissents Holmes hewed a path independent of
his own personal preference. In both he identi¬ed the pertinent policy
as that of allowing free competition, and noted in Vegelahn that “it is plain
from the slightest consideration of practical affairs, or the most super¬cial

31 Id.
32 White, Justice Oliver Wendell Holmes, 362“66.
Holmes, Legal Theory, and Judicial Restraint
132

reading of industrial history, that free competition means combination.”
Then, in Plant, Holmes made clear his view that this policy must be applied
with equal force to employers and workers, notwithstanding his personal
skepticism of the wisdom of the union cause.33
Cases such as these certainly make the role of the judge emerge as
more pivotal than that of the jury.34 Perhaps with this in mind, Holmes
was prompted to articulate a perspective on the question of policy going
somewhat beyond that found in the 1894 article on privilege. In “Law
in Science and Science in Law,” an address to the New York State Bar
Association delivered on January 17, 1899,35 he ¬rst restated, and sharp-
ened, his early image of the development of law as an “approach toward
exactness [in which] we constantly tend to work out de¬nite lines or
equators to mark distinctions which we ¬rst notice as a difference of
poles.” Then he advanced a picture of law as a medium for the work-
ing out of urgent con¬‚icts in a far less leisurely manner than the grad-
ual growth of common law rules out of particular jury determinations.
In this regard, the address expands on a comment in the 1894 article
on privilege: “The time has gone by when law is only an unconscious

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