No Holmes?

Following Calvin's lead, I see that Brian Leiter's polling  about the most significant legal thinker in the twentieth century.  I was pleased to see the person I voted for (Benjamin Cardozo) was doing quite well (ranked second so far, behind Judge Posner).  But I also wondered, why no Oliver Wendell Holmes?  For people born in the nineteenth century, Leiter says "most of the thinker's important work must have been done in the 20th-century."  That raises the question: what was Holmes' most important work.  I guess that Brian's crediting The Common Law as Holmes' most important work.  Because I'm much interested in the politics of reputation, let's run a thought experiment: would Holmes be much remembered today if "all"  he'd done was write The Common Law and serve on the Massachusetts SJC?  (The image of Holmes as a young man is in deference to the argument that his most important work was done in the nineteenth century.)

This also reminds me that I just saw an announcement that G. Edward White's introduction to the new Harvard University Press edition of The Common Law is now up on bepress. I started reading it this morning and much enjoyed it.  I hope to have some more thoughts on it when I have some more time.

Of course, there are other things one might say about the list: what about William O. Douglas and Earl Warren?  They're both mighty important; this raises the obvious question, what do we mean by legal thinker?  Can we include legislators?  And then to get somewhat more creative, I might suggest that we should be thinking about W.E.B. DuBois here, too--given how his constant advocacy of the equal treatment of African Americans helped lead us towards a new understanding of the equal protection clause.

Alfred Brophy

Comments

[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.