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Authors: Louis Menand

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When Holmes remarked, therefore, in “The Path of the Law,” that although “for the rational study of the law the black-letter man may be the man of the present … the man of the future is the man of statistics and the master of economics,”
he meant that the more it became obvious that legal liability can be thought of as a function of the probability of injury, and that courts will weigh the cost of avoiding such injuries against the social benefit of the activity in question, the more irrelevant a knowledge of formal legal doctrine would be to the ability to predict what courts will do. In his theory of torts, Holmes did what Charles Darwin did in his theory of evolution by chance variation and James Clerk Maxwell did in his kinetic
theory of gases: he applied the great discovery of nineteenth-century science, which was that the indeterminacy of individual behavior could be regularized by considering groups statistically at the level of the mass, to his own special field.
The advantage of the “reasonable man” standard (in Holmes’s view) is that it regularizes the business of evaluating conduct without locking courts into the application of codified principles guaranteed to break down whenever they are confronted with a hard case, or with a mutation in social custom. The disadvantage is that in practice, juries are not always consistent. This group of twelve may regard as reasonable what that group of twelve regards as careless. Holmes did think that since in many tort cases the facts, legally speaking, are essentially the same, judges, having seen the way juries generally dispose of such cases, should be able to determine liability as a matter of law. And in his own career as a judge, he did occasionally try to establish such common law rules, usually with disastrous results. The most famous of these is the Supreme Court case of
Baltimore & Ohio Railroad v. Goodman
(1927), which arose out of the death of a motorist at a railroad crossing where his view of the track was obstructed. Holmes overturned a decision for the plaintiff on the principle (newly laid down by him) that a motorist arriving at a railroad crossing has a duty to stop the car, get out, and look up and down the track before proceeding. “It is true,” Holmes explained, “that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the courts.”
Holmes did not drive. After his death, the rule was thrown out by Benjamin Cardozo.
Holmes was wrong in
Baltimore & Ohio v. Goodman,
but he was wrong on his own theoretical ground. It just happens not to be the custom to get out of the car at railroad crossings, and therefore it was almost certainly not (as Holmes probably suspected) sympathy for the widow Goodman that dictated the lower-court result, but, precisely, the application of the community standard of what it is reasonable to do at a railroad crossing. Holmes did not mean to contradict his own argument against reliance on abstract principles in
; he only meant to increase the degree of predictability in tort law. And this emphasis on predictability is tied to the third significant element in Holmes’s idea of “experience,” which is what might be called the imprecision factor.
“The loss of certainty” is a phrase many intellectual historians have used to characterize the period in which Holmes lived. But the phrase has it backward. It was not the loss of certainty that stimulated the late-nineteenth-century thinkers with whom Holmes associated; it was the discovery of uncertainty. Holmes was, in many respects, a materialist. He believed, as he put it, that “the law of the grub … is also the law for man.”
And concerning the hope of social betterment, he was something worse than a pessimist. “I despise,” he said, “the upward and onward.”
But he was not entirely a determinist, because he did not think that the course of human events was fixed—or that if it was fixed, we could reliably know anything about it. Complete certainty was an illusion; of that he was certain. There were only greater and lesser degrees of certainty, and that was enough. It was, in fact, better than enough; for although we always want to reduce the degree of uncertainty in our lives, we never want it to disappear entirely, since uncertainty is what puts the play in the joints. Imprecision, the sportiveness, as it were, of the quanta, is what makes life interesting and change possible. Holmes liked to call himself a “bettabilitarian”: we cannot know what consequences the universe will attach to our choices, but we can bet on them, and we do it every day.
For although Holmes believed that experience is the only basis we have for guiding our affairs, he also believed that experience is too amorphous, or too multiple, ever to dictate a single line of conduct. Experience makes everything blurry at the edges; it reduces knowledge to a prediction of what should be the case most of the time, and we treat a prediction as an absolute at our peril. We start, in the law, with a principle or a concept that seems to help us decide the great mass of cases, and we therefore begin to assume this concept as fundamental. But as we move out toward the marginal cases, we begin to find that the concept actually rests on a whole submerged structure of other concepts, policies, intuitions, practices,
and assumptions, and at a certain point we discover that it has become emptied of predictive force.
Sic utere tuo ut alienum non laedas,
for instance, is an old common law maxim generally interpreted to mean that people are required to use their property in a way that will not injure the property of another. This certainly sounds unexceptionable, in law and in morals. But it is a principle, Holmes argued in “Privilege, Malice, and Intent,” that “teaches nothing but a benevolent yearning.”
If I burn down the mom-and-pop candy store around the corner, it is true that I will be held liable for the damage. But (to use one of Holmes’s favorite examples) if I set up my own candy store right next door and, by deliberately underselling them, bring mom and pop to heartache and financial ruin, ultimately driving them homeless into the night, the law, although the consequences of my behavior are effectively the same, will be indifferent.
Holmes’s perception here was not that we are hypocritical in punishing the first behavior and countenancing (not to say encouraging) the second. His perception was that we cannot make our way by universalizing our principles: it is always the underlying context that gives them force, and it is in the nature of contexts to shift. Nearly all of Holmes’s greatest moments as a judge arose from this perception. It is at the bottom of his most famous opinions, the dissents in the free speech cases of
Abrams v. United States
(1919) and
Gitlow v. New York
(1925)—although there is something else interesting about those opinions, too, which is that in order to write them, Holmes had to overcome an innate resistance to the very idea of a right to free speech, a resistance which was based on a principle of his own.
That principle was actually a kind of an antiprinciple. Holmes was a lifelong enemy of the concept of natural law—the notion that individuals retain certain rights, against the state, simply by virtue of being human. There are, Holmes thought, no such immutable and universal rights. What we take to be rights are simply customs that
have become settled enough to seem inevitable. “As an arbitrary fact people wish to live,” he wrote in “Natural Law” (1918),
and we say with various degrees of certainty that they can do so only on certain conditions … . But that seems to me the whole of the matter. I see no
a priori
duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about duties and rights. But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space. One phrase adds no more than the other to what we know without it.
In 1918, this was the creed of a liberal. For the rights Holmes had in mind were “the right to property” and “liberty of contract,” rights which courts had, in the view of political progressives, invented in order to declare unconstitutional legislation intended to regulate the economic life. In
(1905), for example, the Court had voided an act of the New York State legislature that limited, on grounds of public health, the number of hours employees could work in a bakery—a decision the majority based on the putative right, constructed out of the Fourteenth Amendment, to liberty of contract. Holmes, in his dissent, had argued not merely that the Fourteenth Amendment did not enact the liberty of contract, but that reading liberty of contract into the language of the Fourteenth Amendment short-circuited the very thing the law was supposed to allow for, which was the flexibility to adapt to circumstances as circumstances change. “A constitution is not intended to embody a particular economic theory,” as he put it, “whether of paternalism and the organic relation of the citizen to the state or of laissez faire.
It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
This belief—that the Constitution is designed to allow the majority to experiment, at the expense of the interests of individuals, with different social theories and arrangements—made it easy for Holmes, in 1919, the year after his essay on “Natural Law” appeared, to write three opinions for the Court sustaining convictions under the Espionage Act. The convictions (one was a ten-year sentence for Eugene Debs) were for expressing opinions calculated to encourage others to interfere with the American war effort—for example, by resisting the draft. They were cases, in other words, in which speech had been judged to constitute an incitement to a criminal act. It was in these opinions that Holmes formulated what has come to be known as the “clear and present danger” test for the prosecution of speech: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” he wrote, in
Schenck v. United States.
“It is a question of proximity and degree.”
The “clear and present danger” test has received a good deal of criticism from commentators who find it insufficiently protective of speech—for example, Gerald Gunther, in his great biography
Learned Hand: The Man and the Judge
(1994). In 1919, Hand was at the beginning of his long career as a judge. His regard for Holmes was virtually unadulterated: he considered Holmes, he once said, “the epitome of all a judge should be.”
But Hand thought that Holmes’s formulation in
was too broad. Two years earlier, Hand had written an opinion, in
Masses Publishing Co. v. Patten
, enjoining the New York postmaster from refusing to circulate, because of its antiwar sentiments, Max Eastman’s journal the
, arguing that speech can constitutionally be suppressed or punished only when the words used explicitly counsel a violation of the law. The
, he believed, was being persecuted for its politics under
cover of what would otherwise be an acceptable state effort to prevent interference with the war effort. “To assimilate agitation, legitimate as such, with direct incitement to violent resistance,” Hand said, “is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.”
(His decision was quickly overturned.)
Hand believed that his construction provided narrower and more “objective” grounds for the prosecution of speech than Holmes’s did; and in conversations and letters, he tried to convince Holmes to adopt it.
Holmes was persuaded (by Hand and others) to regard some prosecutions under the Espionage Act as unconstitutional, as he did the following term in the
case; but he was never persuaded to adopt Hand’s formula, and he even claimed not to see Hand’s point. “I don’t know what the matter is, or how we differ,”
he complained in a reply to one of Hand’s letters. The matter was that under Holmes’s rule, liability hinges on the probability that the evils Congress wishes to prevent will happen as a consequence of the speech in question, and this probability cannot be merely a function of the “objective” meaning of the words uttered. It is not strictly a matter of meaning, in Holmes’s formulation; it is a matter of proximity and degree. I may counsel resistance to the draft in the shower as explicitly as I like (as Hand, of course, would have conceded). But out of the shower and before an audience of potential conscripts, I may communicate the same advice in language that never quite reaches the level of explicitness Hand’s test requires, but that has the intended effect nonetheless. There are many ways to skin, linguistically, a cat. Gunther is correct to claim that Hand’s formula is much more speech-protective than Holmes’s. But Holmes’s is much more language-sensitive. Holmes’s theory of free speech rests on the assumption that informed Holmes’s whole approach to liability generally, which is that the community can, given the facts, judge when speech crosses the line of expression and becomes incitement. Whether this is an attractive theory or not from a civil libertarian point of view, it is consistent with Holmes’s belief that experience conditions language (and everything else) in unpredictable ways. We don’t know in advance what words will constitute
an illegal incitement and what words will not. We have to measure the intent of the speech by Holmes’s usual standards: by context and experience.
The trouble is that by those standards, every expression is potentially harmful; it is, as Holmes said, only a question of degree. “Every idea is an incitement,” as he admitted in the dissent in
“It offers itself for belief and if believed is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason.”
It is almost the language of an enemy of free speech, for it makes it clear that when we ask a court to weigh the probable effect of the speech in question by experience, we are taking a chance that mere offensiveness will be excuse enough to find liability, which is just what Hand feared. But Holmes thought that dominant opinion would contrive a way to suppress what it regarded as evil no matter what the legal foundation. And he liked the idea of risk. And, of course, he was not an enemy of free speech. His opinion in
and his dissents in
were fundamental to the establishment of First Amendment law. Holmes was able to write those opinions, though, not because he was suddenly convinced of the inalienability of the right to freedom of expression, but because he saw in those cases a corollary to his principled aversion to faith in principles. He managed to articulate a rationale that had the effect of making free speech a basic right without ever invoking the idea of natural law.
His most celebrated opinion is probably the dissent in
. He argued there that the speech being punished under the Espionage Act (up to twenty-year sentences to Bolshevik sympathizers for throwing pamphlets from a building in Manhattan) could not plausibly be claimed, under the circumstances, to constitute an imminent danger to the war effort. The defendants, he thought, were being punished simply for holding views offensive to the majority. The danger represented by their prosecution was analogous to the danger he had identified in
: the danger of mistaking a general
sentiment for a truth. It read into the way we happen to live a certainty about the way people ought to live. It was, in a word, unbettabilitarian. Even the Constitution, Holmes said, is a bet we may lose. “It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”
It is the motto of a man who thought that there is no final word, only another way of putting it.
BOOK: American Studies
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