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March 04, 2009

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Matt

I guess The Path of Law came out before the 20th century, too, so it seems that both of his most important theoretical works were pre-20th century. I'm also partial (though admittedly w/o extremely strong reasons) to the idea put forward by several people that Holmes' most famous "liberal" opinions on the Supreme Court were mostly the work of Brandies, but that they were issued under Holmes's name so as to carry more weight. (I also tend to think that Holmes's influence was mostly baneful, but I guess that's beside the point. I think that of at least a few of the others on Leiter's list, too.)

Alfred

Right, Matt--Path of the Law was late 1890s (I think 1897). But would we be reading Holmes if he hadn't been on the US Supreme Court for 30 years in the twentieth century? If not, should we say his most important work is nineteenth century?

Anyway, these kinds of polls are always fun exercises....

Matt

Hi Al,
I strongly suspect that Holmes would be read mostly by scholars (legal historians and theorists) and not much by more doctrinal writers and law students if he'd not been on the Supreme Court, but I do suspect that he would be thought important by legal theorists and historians for his role as the sort of proto-realist and proto-legal pragmatist. That he was the rare theorist who got to put his ideas into practice makes him more interesting and historically important, obviously, and interesting for the scholar, too, as they can then think about how his ideas fit with his actual actions on the court. But I think your right in thinking that w/o his time on the Supreme Court he'd not be thought of as the very important figure that he usually is.

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