The Common Law (Barnes & Noble Library of Essential Reading) [NOOK Book]

Introduction

Over several weeks, during the year 1880, American law changed forever. Future Supreme Court Justice Oliver Wendell Holmes, Jr., delivered the series of lectures at the Lowell Institute in Boston that were shortly thereafter edited and published as The Common Law. As Holmes delivered the lectures, a buzz of excitement enveloped the New England intellectual community. Attendance remained strong at each successive lecture -- something that rarely occurred in lectures series then or now. Like so many great contributions to learning -- from Darwin's The Origin of Species to Einstein's Special Theory of Relativity -- people knew immediately that new ground was being broken, and they wanted to be part of it.

Now, a century and a quarter later, we can look back at The Common Law and still feel the same sense of excitement that our predecessors did, virtually undiminished by the tumultuous decades of American jurisprudence that have followed. The Common Law remains an exhilarating legal and intellectual landmark in law because both its content and its style, its substance and its process, perfectly mirror what common law is: a complex and diffuse combination of history, hypotheticals, actual cases, analysis, interpretation, criticism, and philosophy -- all woven together to create the rules by which we live.

Born in Boston in 1841, Oliver Wendell Holmes, Jr., started life with both an advantage and a challenge that most Americans of his day did not have. His advantage was his father, Oliver Wendell Holmes, Sr. -- the great doctor and writer -- who provided an intellectually dynamic and financially secure environment for Oliver and his siblings.The young Holmes had the luxury of discussing career opportunities with the likes of Ralph Waldo Emerson and other great minds of the day. As a result of this high-learning environment, the young Holmes took up lifelong interests in such fields as prints, Plato, and botanical studies. Few aspiring intellectuals could have had a more stimulating upbringing.

The disadvantage that the young Holmes had was the same as his advantage: his father. Throughout his youth, the younger Holmes felt that he lived in the shadow of his famous father, and, early in his career, remained dependent on him for both money and lodging. Moreover, the elder Holmes was quite judgmental of his son. While he loved Oliver, Jr., very much, the elder Holmes would often advise his son in an abrupt and didactic manner. When, for example, the younger Holmes told his father that he had decided to go into law, the elder Holmes is said to have exclaimed, "Law? A lawyer cannot be a great man!"

As a result of the combination of intellectual stimulation and parental pressure, the younger Holmes made it a goal to make his mark on the world by the age of forty -- through substantive accomplishment, not personal self-promotion. He distinguished himself as an officer in the Civil War from 1861 to 1864. As a lieutenant, he was wounded at Balls Bluff but retained remarkable composure during the battle, stating "I felt and acted very cool, and did my duty, I am sure." He returned as a captain and was again wounded in the Virginia Peninsula campaign -- a story about which his father wrote a famous magazine article for The Atlantic Monthly -- which was a source of embarrassment to the wounded Holmes. Holmes returned to the battlefield again and was wounded a third time at Chancellorsville, as a twenty-three-year old captain. Upon his retirement from the military, he was a bona fide war hero.

Holmes then turned to law, despite his father's skepticism. He received his degree from Harvard and associated himself with a couple of different firms. However -- and Holmes conceded as much -- he was not a particularly enthusiastic practitioner. He took more pleasure in writing for the American Law Review, and editing a new edition of Kent's Commentaries -- a monumental work of legal scholarship that brought him his first notoriety among the legal community.

But that was not enough. He had still not achieved the level of personal accomplishment that he sought. When he was invited to give the lectures at the Lowell Institute that resulted in The Common Law, he saw the opportunity that he had awaited. And, just shy of his fortieth birthday, he delivered The Common Law to very positive reviews. From that point, his career was meteoric -- a brief teaching engagement at Harvard, several years on the Massachusetts Supreme Court, and finally, at age sixty-one, he embarked on a near three-decade tenure on the Supreme Court of the United States. His brilliant opinions -- and fiery dissents -- in such cases as Lochner v. New York -- earned Justice Holmes a prominent position among the greatest jurists that the United States has ever produced. At the same time, he and his wife Fanny enjoyed the reputation as being among the most generous, accessible, and hospitable people in Washington, devoting countless hours to mentoring young people and visiting with well-wishers. Justice Holmes retired from the Supreme Court in 1932, and he died on March 6, 1935, just a few days before his ninety-fourth birthday.

As we look at The Common Law today, there remains no other work of jurisprudence that combines and reflects so many principles of American law. The book is divided into eleven lectures, each one purportedly about a technical area of law -- criminal law, torts, possession, succession, etc. -- but each also a philosophical exposition of the dynamic and transitional nature of American jurisprudence. Lawyers and scholars today can take from the book many important, relevant lessons, including: (1) the foundation of certain time-honored principles of law rests in human experience; (2) legal change is effectuated through the progressive manipulation of formality until a new principle appears and the old formality is lost; and (3) jurists must carefully balance sound public policy with the fear of an overreaching government -- a foreshadowing of the sweeping but carefully constructed opinions that Justice Holmes would write decades later. And there is one more lesson, unrelated to the text itself: an individual can triumph in realizing his own American dream.

In an era of cynicism, skepticism, and manipulation of the legal system by lawyers, business people, and individuals alike, Holmes reminds us that there are transcendent principles of law, rooted deeply in instinctive morality and human experience. In his third lecture, Trespass and Negligence, Holmes states:

The standards of law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does no attempt to see men as God sees them… But a certain average of conduct… is necessary to the general welfare.

He goes on to describe, with clarity that is valuable to any lawyer, judge, or student today, certain underlying standards of law that resonate powerfully in the twenty-first century - an era where individual plaintiffs try to shirk responsibility for their personal actions and corporate insiders manipulate the truth to protect their empires. For example, Holmes' discussion of the person of "ordinary prudence" reminds us that this standard is still our last bastion against the tendency of litigants to deny personal culpability as they seek damages for spilling their coffee, tripping over their own toddler in a hardware store, or falling off a ladder that was put on a pile of thawing fertilizer -- to cite a few recent cases. Holmes admonishes us that the law should punish only those who have failed to meet some obvious, "fixed" standard of ordinary prudence. The rest of us should reckon with consequences of our own faults. If we are to control the litigation crisis in our country, Holmes' standard must remain the standard in our world today.

Similarly, at the other end of the spectrum, Holmes' discussion of the elements of fraud and how a reckless disregard for the truth can create liability equal to that of intentional misconduct resonates powerfully in a time when corporate executives claim that their orders to "meet the earnings projections or else" did not precipitate accounting fraud or document destruction. Holmes recognizes that pressure and indifference can be as culpable as a specific bad act itself -- another powerful lesson from the past.

Indeed, some of Holmes' legal standards seem even more relevant now than they did when he articulated them. In an era where legal disputes are becoming increasingly focused on rights in intangible intellectual property, we can almost marvel at the foreshadowing in a simple statement Holmes made in the Succession lecture -- a statement which received little notice in 1880: "Nowadays the notion that a right is valuable is almost identical with the notion that it may be turned into money by selling it… Before you can sell a right, you must be able to make a sale thinkable in legal terms." With that line, Holmes has summed up the practice of virtually every intellectual-property lawyer grappling with issues of software rights, music downloading rights, human tissue rights, medical privacy rights, and Internet rights today.

As for principles of the law of contracts, Holmes' discussion of "consideration" failures of conditions, the difference between a void and a voidable agreement, remains among the clearest and most relevant expositions of these concepts ever written and continues to be the standard of law cited in briefs across the country.

Most of The Common Law is, however, not devoted to the simple exposition of the law. Rather, it is a testament to how experience mandates that law change. One theme that recurs in the lectures is how old rules and forms of action are manipulated to meet public policy objectives. As Holmes put it,

"When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory… [S]crutiny and revision are justified."

He reiterated this point in his famous speech dedicating a building at Boston University in 1897:

It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished since, and the rule simply persists from blind imitation of the past.

In The Common Law, this principle is most obvious in Holmes' discussion of the development of the form of action of "trespass on the case" to deal with unlawful takings that were beyond those of simple trespass against land, but similar such examples appear throughout the work. Often Holmes attributes lingering appendix-like formalities to the strong roots of our law not only in old English forms of action, but also in Roman and Germanic law. Holmes revels in the study and analysis of other legal systems, but he admonishes us not to hold on to the remnants of these systems too tightly.

Which brings us to another reason to re-read The Common Law. Over the past two decades, it has become convenient for some legal scholars to characterize the late 1800s as an era of "formalism," followed by the period of "realism" in the early part of the twentieth century, and then followed by a more critical view of the law in the late twentieth century. For example, a prominent law professor a few years back referred to nineteenth-century jurisprudence as one of "absolutes," followed by the realist period in the early twentieth century as one that finally acknowledged that the individual opinions of judges do come into play in the development of the law and followed by the heralded current era where we supposedly all must admit that the law is simply utilized as a convenient excuse to advance a political agenda -- pro-business, pro-choice, or whatever the underlying political interest might be.

The Common Law calls the preceding characterization into question because the book contains elements of all three supposed "eras" of law. For example, several recent scholars have tried to make the point that there is no real difference between contract and tort -- that they are convenient labels that protect certain societal or political interests. Consider this quote: "It must be remembered that the distinction between tort and contract, and especially between the remedies for the two is not ready made." That statement was made by Holmes in 1880 in the lecture on Early Forms of Action, so the idea is nothing new. Similarly, Holmes seemed much a legal realist when he wrote, "Every important principle which is developed by litigation is in fact the result of more or less definitely understood views of public policy … the unconscious result of instinctive preferences and inarticulate convictions, but nonetheless traceable to views of public policy in the last analysis." Sometimes we must re-read the past just to be sure that we know how much stock to put in what we are being told about it today.

That is not to say that Holmes could foresee or endorse all subsequent legal movements. As his lecture on Trespass and Negligence makes eminently clear, Holmes was skeptical of the notion of strict liability in tort, which has since become an essential part of American jurisprudence. But even there, he showed prescience, noting at one point later in the book that entities like railroads, "who may have a private individual at their mercy, or exercise a power too vast for the common welfare," may at sometimes warrant a different standard of liability than that being applied to the less powerful.

So we can use The Common Law today as a sort of reality check -- both as a testament to the ever-changing nature of the law and as a reminder that the past cannot be boxed, bowed, and characterized in any sort of formal or simplistic manner.

The Common Law also remains important today because it represents essentially the first work of American jurisprudence that explicitly acknowledges the public policy interests that legal principles must reflect. But Holmes, way ahead of his time, understood the need to balance public policy concerns with the need to prevent government and the courts from overreaching. He saw some place for activism, but in a broader context of restraint.

Holmes' career as a Supreme Court Justice is often characterized by his tacit alliance with President Theodore Roosevelt and others who, during the early twentieh century, used government to redress wrongs committed against the poor and the working class -- through antitrust and labor laws. Certainly, the Lochner dissent cited earlier, which supported minimum working hours for bread bakers, fits the bill, as do Holmes' opinions in cases involving groups such as Boston labor unions and child laborers. Holmes clearly saw the need for flexibility in the law to reflect significant public policy interests. He was even willing to curtail free speech during World War I, upholding the Espionage Act of 1917, and in so doing, he made the famous statement that free speech does not extend to situations that create a clear and present danger, such as yelling "fire" in a crowded theater.

But Justice Holmes often found government to be overreaching as well. President Roosevelt was infuriated with Justice Holmes when the Justice sided with big business in the famous Northern Securities dissent -- effectively voting to uphold a conglomerate that the president felt to be anti-competitive. And Justice Holmes wrote several powerful opinions supporting the rights of free speech in non-emergency situations, including the right of a communist to publish a left wing manifesto during times of peace.

The roots of these great opinions may be found in The Common Law. Holmes' guidepost for government intervention is perhaps best articulated in Lecture III, in which he states that the "cumbrous and expensive machinery [of the state] ought not to be set in motion unless some clear benefit is to be derived from disturbing the status quo. State interference is an evil, where it cannot be shown to be a good. The undertaking to redistribute losses … would not only be open to these objections, but … to the still graver one of offending the sense of justice." That said, however, Holmes also recognized in Lecture III that "judges as well as others … should openly discuss … and base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated fifty years ago." In effect, Holmes invented the "balancing test" between leaving the law out of our lives by respecting individual rights most of the time, but intervening where protection of clearly defined public interests so requires.

There have been surprisingly few biographies of Oliver Wendell Holmes, Jr. Not many have written about his personal successes and occasional setbacks. Rather, Holmes' legacy is clearly is his work -- namely The Common Law, his judicial opinions, and his occasional speeches. That is as Holmes would have liked it. Yet The Common Law represents a personal triumph as much as it represents a great work of jurisprudence. Holmes was born into a family dominated by a doctor and a poet; he decided to become a lawyer. He was not exceptional at -- and he was certainly dissatisfied with -- practicing law. So he became a scholar, set a goal to make a mark on the world, and did so with resounding success.

Justice Felix Frankfurter said of Holmes in 1932, "he was probably the greatest mind and the most complete human personality we have had on the court." Yet relatively few know much about the person and personality behind the groundbreaking jurisprudence that Holmes authored. Reading The Common Law not only educates us about the evolution of the law, but also serves as a source of personal inspiration for all of us trying to find our place in the world. For, in The Common Law, we see a profound philosophy of life and professionalism that served an individual and his country equally well. As Holmes himself put it during a speech at Harvard in 1911, the best service a person can do is "to see so far as one may, and to feel the great forces that are behind every detail … to hammer out as compact and solid a piece of work as one can, to try to make it first rate, and to leave it unadvertised." The Common Law is a living testament to this successful philosophy of law and life.

Thomas A. Schweich is a partner at the international law firm of Bryan Cave LLP. He is the author of Protect Yourself from Business Lawsuits (…and lawyers like me) (Scribner, 1998); Crashproof Your Life (McGraw-Hill, 2001); Staying Power (McGraw-Hill, 2002); and co-author of Soaring Through Turbulence (John Wiley & Sons, 2004). He has also authored award-winning articles on numismatics and economic history and on government contracts and business management. A graduate of Yale College and Harvard Law School, he currently lives in St. Louis with his wife and two children.