Unlike many of my colleagues, I’ve never been an admirer of Oliver Wendell Holmes. Not only were many of his opinions wrongly decided, even the ones that were right were often so poorly reasoned and incoherent and that they did more harm than good. For me, Holmes’ lack of logical rigor always seemed like a fault; however, as this recent blog post by Samuel Bray demonstrates, for progressive advocates, scholars, and jurists, it has turned out to be a virtue:
From Holmes’s “The Path of the Law”:
“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.”
From Holmes’s review of Holdsworth’s A History of English Law:
“[I]mitation of the past, until we have a clear reason for change, no more needs justification than appetite.”
According to Westlaw, the former is quoted in 146 cases, 534 secondary sources, and 89 briefs, while the latter is quoted in 0 cases, 5 secondary sources, and 0 briefs.
