Holmes repeated his view of the relation between reasons and results in the opinion that, after his opinions in the free speech cases, is his most celebrated, the dissent in Lochner v. New York (1905): “General propositions,” he said there, “do not decide concrete cases.” This is a radical assertion; for it leaves us with the question, If principles don’t decide cases, what does? Holmes’s effort to answer that question led him, after many years, and very im¬probably, to the free speech opinions which capped his career, and on which his reputation now rests.
In 1995, the University of Chicago Press published the first three volumes of The Collected Works of Justice Holmes, which include all
the nonjudicial writings, and is the first such comprehensive edi¬tion. It was edited by Sheldon M. Novick, whose Honorable Justice
(1989) was the first full-length biography of Holmes to make use of all the archival material—a fact that is testimony chiefly to the speed with which Novick was able to take advantage of the opening, in 1984, of the Holmes Papers to biographers after fifty years of failed attempts to get an official life completed. Mark DeWolfe Howe, a professor at Harvard Law School who had once served as Holmes’s secretary, managed to finish two detailed and elegant volumes, The Shaping Years (1957) and The Proving Years (1963); but these take the story only to 1882, the mere brink of Holmes’s fifty- year career as a judge, and Howe died in 1967. Novick’s biography, though serviceable as a narrative of Holmes’s life, was notable for its relegation of virtually all discussion of Holmes’s jurisprudential work to the footnotes, which sometimes assumed a rather disputatious tone. In his main text, Novick suggested that Holmes es¬poused “a kind of fascist ideology”; he described Holmes as “a violent, combative, womanizing aristocrat whose contribution to the development of law was surprisingly difficult to define”; and he an¬nounced it to be his conclusion that Holmes was, in his thought, a structuralist—a judgment that can be called, among the many that have been offered about Holmes’s work, unique.
How this came to be the person chosen to put together the official edition of Holmes’s writings by the trustees of the Holmes Devise (the fund established from Holmes’s bequest of a portion of his estate to the government of the United States) is a mystery, as is the decision of the University of Chicago Press to publish the volumes in the form in which they appear. The first volume contains 333 pages of text; 198 are by Oliver Wendell Holmes, and 135 are by Sheldon M. Novick. Most of these are devoted to a disquisition on “Holmes’s Philosophy and Jurisprudence,” with an ensuing “Critical Appraisal.” This is a subject which has received continuous atten¬tion, at a pretty high level of critical inquiry, since about 1914. A bibliography of Holmes scholarship (none is provided) might have served the purpose more economically and, in what is presented as a memorial edition, more tastefully. Still, though it took sixty years, this is how the job was done.
Novick’s idea that Holmes was a structuralist belongs to a history that runs parallel to the history of efforts to define Holmes’s politics. This is the history of efforts to define Holmes’s philosophy. Holmes has been called a formalist, a positivist, a utilitarian, a realist, a historicist, and a pragmatist (not to mention a nihilist). Com-mentators who cleave to one of these terms usually find themselves spending a good deal of time explaining why commentators who favor one of the other terms cannot possibly be right. This is generally an easier business than defending the term they prefer; and the reason is that none of these terms can possibly be right, because each singles out one aspect of the law as the essential aspect, and it was Holmes’s genius as a philosopher to see that the law has no essential aspect.
A case comes to court as a unique fact situation. It immediately enters a kind of vortex of discursive imperatives. There is the imper¬ative to find the just result in the particular case. There is the imper¬ative to find the result that will be consistent with results reached in analogous cases in the past. There is the imperative to find the result that, generalized across many similar cases, will be most benefi¬cial to society as a whole—the result that will send the most useful behavioral message. There are also, though less explicitly acknowledged, the desire to secure the outcome most congenial to the judge’s own politics; the desire to use the case to bend legal doctrine so that it will conform better with changes in social standards and conditions; and the desire to punish the wicked and excuse the good, and to redistribute costs from parties who can’t afford them (like car accident victims) to parties who can (like car manufacturers and insurance companies). Hovering over this whole unpredictable weather pattern—all of which is already in motion, as it were, before the particular case at hand ever arises—is a single meta-imperative. This is the imperative not to let it appear as though any one of the lesser imperatives has decided the case at the blatant expense of the others. A result that seems just intuitively but is admittedly incompatible with legal precedent is taboo; so is a result that is formally consistent with precedent but appears unjust on its face. The court does not want to seem to excuse reckless behavior (like operating a railroad too close to a heavily populated area), but it does not want to raise too high a liability barrier to activities society wants to encourage (like building railroads). It wants the law to run in a politically desirable direction, but it does not want to be caught appearing to bend an anachronistic legal doctrine in order to compel a politically correct result.