What is the most beautiful, haunting, and literary law review article of all time? In preparation for my upcoming talk on the life and legacy of Oliver Wendell Holmes (see my previous post), I want to say a few words about Holmes’s classic essay “The Path of the Law”, the first page of which is pictured below. To the point, my thesis is that Holmes’s work should be read as a short story or novella, for it is nothing less than a timeless masterpiece, along with the works of other great writers like Jorge Luis Borges and Ernest Hemingway.
As it happens, I explored Holmes’s seminal essay from a literary perspective in my article “Coase’s Parable“, which was published in a special symposium issue of the Mercer Law Review in May of 2023. (“The Problem of Social Cost” by Ronald H. Coase and Holmes’s “Path of the Law” are two of the most controversial, most cited, and most influential law review articles of all time.) Below the fold is an extended excerpt from my 2023 paper:
For Holmes, the law is not about autonomy or some other teleological goal; it is first and foremost about making accurate predictions on the outcomes of court cases: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”[1] In support of his predictive theory of law, Holmes conjures up one of the most enduring and indelible anti‑heroes in the annals of legal scholarship: the bad man.[2] In brief, Holmes’s bad man is an amoral utility maximizer “who cares nothing for an ethical rule which is believed and practised by his neighbors.”[3] The bad man, in other words, only wants to avoid legal liability and “keep out of jail if he can.”[4] After introducing this memorable anti‑hero, Holmes makes a direct appeal to his audience:
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.[5]
Alas, Holmes’s sinister protagonist drops out of his essay early on. Although this fictional figure makes multiple appearances on the first few pages of Holmes’s 1897 essay,[6] he soon disappears entirely from view. The bad man is instead replaced by the “man of statistics and the master of economics,”[7] both of whom take center stage in Holmes’s story:
When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.[8]
Given this dragon reference, it is tempting to describe Holmes’s classic essay as a story about “overcoming the monster.”[9] But who is the monster in Holmes’s story? For his part, legal scholar Thomas Grey (1997) has described “The Path of the Law” as a quest narrative with Holmes himself (presumably) as the hero of his story.[10] On this reading of “The Path of the Law,” Holmes’s quest is an intellectual one: discovering the true meaning of the “universal law,” or in the immortal words of Oliver Wendell Holmes himself:
To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. . . . Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.[11]
At a deeper level, however, “The Path of the Law” could also be read as a story about “rebirth.”[12] Christopher Booker, for example, describes the basic sequence of a rebirth story in Chapter 11 of his magnum opus Seven Basic Plots; for Booker a rebirth story unfolds as follows:
- First, a young hero or heroine falls under the spell of an evil power.[13]
- All may seem to go well, but eventually the danger or threat returns in full force, and it appears as if the evil power will triumph.[14]
- The story then concludes with a miraculous redemption, and the protagonist changes his ways and becomes a better person.[15]
As it happens, all these elements are present in “The Path of the Law.”[16] The evil power in Holmes’s story, for example, is money.[17] To have a successful career and become wealthy, a lawyer must be able to make accurate predictions about the law.[18] But a lawyer who falls under the spell of money, who uses the law solely to guide self‑interested clients, is trading off happiness for wealth, and what really matters for Holmes is not money but the “command of ideas.”[19] He thus concludes his essay by appealing to the “remoter and more general aspects of the law”[20] and invites his audience to “catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.”[21] In other words, Holmes’s narrative is really a story about rebirth. To be a good lawyer it is not enough to make accurate legal predictions; one must also nourish one’s intellect.
[1]. Holmes, Path of the Law, at 461. Full disclosure: Holmes’s predictive theory of law has shaped my own research agenda. See F.E. Guerra‑Pujol, Chance and Litigation, 21 B.U. Pub. Interest L. J. 45 (2011); see also F.E. Guerra‑Pujol, A Bayesian Model of the Litigation Game, 4 Eur. J. of Legal Stud. 220 (2011); F.E. Guerra‑Pujol, Why Don’t Juries Try ‘Range Voting’? 51 Crim. L. Bull. 680 (2015); F.E. Guerra‑Pujol, The Case for Bayesian Judges, 6 J. of Legal Metrics 13 (2019).
[2]. See Holmes, Path of the Law.
[8]. Id. Holmes then goes on to say, in perhaps one of the most memorable statements about the law of all time: “It is revolting to have no better reason for a rule of law than that 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 long since, and the rule simply persists from blind imitation of the past.” Id.
[9]. See Booker, The Seven Basic Plots, at Chs. 1–2.
[10]. See Thomas C. Grey, Plotting the Path of the Law, 63 Brooklyn L. Rev. 699 (1997).
[11]. Holmes, Path of the Law, at 715.
[12]. See generally Booker, op cit., at Ch. 11.
[13]. Id. at 204 (“a young hero or heroine falls under the shadow of [a] dark power.”).
[14]. Id. (“for a while, all may seem to go reasonably well . . ., but eventually it [the threat] approaches again in full force”).
[15]. Id. (“finally comes the miraculous redemption”).
[16]. See Holmes, Path of the Law.
prior probability 