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  If Holmes's first object in "The Path of the Law" is to distinguish law from morality, his second is to reiterate the contrast between logic and experience that he originally proclaimed in The Common Law. But the meaning of the distinction has changed dramatically.

  Holmes continues to criticize "the fallacy . . . of logical form" and the view that law "can be worked out like mathematics from some general axioms of conduct."229

  [T]he logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.2 °

  While Holmes's criticism of formalism is not new, his association of logic with a "longing for certainty and for repose" is. Moreover, while it has been frequently observed that Holmes's own rendition of Th-, Common Law was itself deeply rooted in formalism,23' "The Path of the Law" is, by contrast, decisively anti-formalist.

  It is not logic but experience that is dramatically reconceived in "The Path of the Law." In The Common Law, Holmes managed to achieve a subtle balance between the "analytical" and "historical" elements of law, between policy and purpose, on the one hand, and historical change and contingency on the other. Because of the mediation of Darwinism, Holmes experienced no ultimate contradiction between the two. In "The Path of the Law," however, policy-the analyt- ical--virtually obliterates history in Holmes' conception of "the rational study of law." "We . . . must remember that . . . our only interest in the past is for the light it throws upon the present,"232 Holmes declares. "I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them."233 History is necessary only because "it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of . . . rules."

  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. It is revolting to have no better reason for a rule of law than that . . . it was laid down in the time of Henry IV."'

  Just as history is no longer associated with progressive evolution, the source of experience has shifted from custom to policy. The conflict over workers' compensation reflects "a concealed, half conscious battle on the question of legislative policy" that cannot be settled either "deductively, or once for all.. . ."235 More generally, all policy reflects trade-offs. We need to learn "that for everything we have we give up something else," and we need to be "taught to set the advantage we gain against the other advantage we lose. . . ."236

  With "The Path of the Law" Holmes pushed American legal thought into the twentieth century. It is the moment at which advanced legal thinkers renounced the belief in a conception of legal thought independent of politics and separate from social reality. From this moment on, the late-nineteenth-century ideal of an internally self-consistent and autonomous system of legal ideals, free from the corrupting influence of politics, was brought constantly under attack.

  "The Path of the Law" appeared just one year before the publication of William James's path-breaking first essay on pragmatism, announcing that the only test of any idea is in its "practical consequences."237 Indeed, Dorothy Ross shows that by this time John Dewey had begun to embrace the view that "the only test of action, in ethics as in knowledge, was whether or not it worked."Z38 With "The Path of the Law" both American legal theory and philosophy marched hand in hand to embrace consequential ism. 239 In this sense, "The Path of the Law" is but one part of a deep sea change in American consciousness that one might broadly describe as a fundamental break with theological and doctrinal modes of thought.240

  It is at this moment that the idea that law is discovered and not made was dealt its most powerful blow in American thought. Only a short time later, Charles Beard extended these demystifying premises to the Constitution itself. The result was an intellectual alliance between social reform and a view of law as socially created. Those Progressive writers during the decade before World War I who elaborated a "social engineering" view of law would come to treat "The Path of the Law" as an inspired text.

  It is only at this point, I believe, that Holmes takes on the mantle of judicial self-restraint for which he became famous eight years later in Lochner v. New York.24' For judicial restraint follows from the collapse of his search for immanent rationality in customary law. If law is merely politics, then the legislature should in fact decide. If law is merely a battleground over which social interests clash, then the legislature is the appropriate institution for weighing and measuring competing interests. By the time "The Path of the Law" was written, the focus of Holmes's Darwinism had shifted from courts to legislatures, and interest group conflict had replaced historical evolution as the key to understanding the law. 242

  Though I have dwelt at great length on intellectual history, I hope I have not presented the misleading message-regularly conveyed by students of jurisprudence in England and America-that the history of philosophy is the story of a gradual unfolding of better and better ideas that prevailed simply because they were correct. Indeed, I believe that the widespread experience of Americans during the 18gos that the country was falling apart is perhaps the most important key to understanding the shift in thought not only in law but in virtually every field of intellectual inquiry. It is this experience that Holmes, more than any other legal thinker, was able to capture and to work back into the technical structure of the law. '°

  Between August 22, 1896, and May 1q, 1899, when their correspondence lapsed for fifteen years, Holmes wrote around one hundred letters to Lady Castelton. He was fifty-five years old, she fortythree, when they met. Some of these letters have been published in the Boston Sunday Globe Magazine of March 24, 1985, by John S. Monagan under the title Secret Love of Oliver Wendell Holmes, and in his book, The Grand Panjandrum: Mellow Years of Justice Holmes (University Press of America, 1988). Many have been quoted in Chapter 15 of S. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Little, Brown, 1989).

  The letters clearly indicate that Holmes was smitten by the lady and offer unmistakable evidence of a man deeply in love.

  Holmes indicates in some of his letters that he has burned all of Lady Castelton's letters, and on May 2o, 1897, he asks: "Do you burn my letters?"

  My own interest in this correspondence is that Holmes wrote "The Path of the Law" during the fall of 1896 under the immediate glow of this new relationship. It was delivered as an address at Boston University on January 8, 1897.

  On September 17, 1896, Holmes, who had been sent a photograph by Lady Castelton, wrote: "Tonight I ought to go to work on a discourse on Legal Education-but I like it a might better sitting here at home with you looking at me and your eye breaking all over your face. I will stop however, [illegible) with rose scented hair I wonder if you know how you delight me?"

  On October 7, 1896, Holmes wrote: "You speak of my touch of isolation in some of my speeches. It has reference to my work. One cannot cut a new path as I have tried to do without isolation. I have felt horribly alone. But the result has been far more immediate than I have dared dream of its being and the real danger perhaps is that when one has been for a moment in the lead he should wrap himself in his solitude and sit down, and before he knows it instead of being in advance the procession has passed him and his solitude is in the rear."

  On January 11, 1897, three days after he delivered the address, Holmes wro
te: "On Friday I fired off my long projected discourse-on the law-with unexpected success. I had so much to say that I read it in order to get it inside an hour-and to read instead of speaking is bad for the hearers." Even though "the room was crowded the air not too good" and his speech "was preceded by more than an hour of prayer and discourse on the finances of the institution . . . until I saw the listeners eyes begin to roll with poisoned slumber . . . to my great satisfaction I had them all wide awake pretty soon and kept them so."

  On February 11, 1897, Holmes wrote: "I have now dispatched my address about the law to you and lay it at your feet. Look out or it will kiss them. The Boston University printed it-I think rather decently though I should prefer brown cover to the virgin white put on in my honor. But what's the use of being good if it is not signalized by appropriate symbols."

  Before-l had read any of this, I had felt strongly that "The Path of the Law" represented an astonishing intellectual leap for Holmes. I supposed that the best way to understand it was "only" as intellectual history. Now one must ask whether and to what extent it was the discovery of some deepand previously unfulfilled-love that produced in Holmes what Freud called an "oceanic" feeling, inducing him to transcend the prior categories of his thought.

  One of the best accounts of the influence of a love relationship on intellectual activity is in R. Steel, Walter Lippmann and the American Century, chapter 28 (Little, Brown, 1980).

  Redefining the Nature of Property

  The basic problem of legal thinkers after the Civil War was how to articulate a conception of property that could accommodate the tremendous expansion in the variety of forms of ownership spawned by a dynamic industrial society. At a time when legal conceptions were still overwhelmingly derived from ideas about landed property, new forms of property developed and expanded that were increasingly difficult to fit into the conventional categories. The rise of the business corporation generated a number of novel questions about property rights, in terms both of constitutional protection of corporate property and of shareholders' property rights in the corporation. The enormous expansion in the variety of commercial instruments produced new forms of ownership in need of legal classification.

  Above all, the prevailing emphasis in traditional law had been on a "physicalist" definition of property derived from land. Property thus was usually understood in terms of a tangible parcel with clear boundaries. Trespass to land was the essence of legal interference with property rights. But how could a physicalist and concrete definition of property incorporate new, abstract, and intangible forms of wealth such as business goodwill or copyright and patent rights? I During the course of the nineteenth century, there was a consistent tendency toward generalization and abstraction of the idea of property in order to accommodate these new and intangible interests. And as the abstraction of the legal idea of property reached its culmination near the end of the century, it became more and.more vulnerable to certain fundamental contradictions that the earlier, more modest, physicalist understanding of property had been able to conceal or suppress.

  "Property is everything which has exchangeable value," declared Supreme Court Justice Noah H. Swayne in his dissent in the Slaughterhouse Cases (1873).2 As John R. Commons has shown, Swayne's statement was one of the earliest postbellum efforts to abstract and generalize the conception of property in American constitutional law. This minority conception thereafter "began to creep into the constitutional definitions given by state and federal courts, as indeed was inevitable and proper if the thing itself was thus changing. Finally, in the first Minnesota Rate Case, in 18go, the Supreme Court itself made the transition and changed the definition of property from physical things having only use-value to the exchange-value of anything."3

  This shift, Commons saw, had been foreshadowed by justice Stephen Field's dissent in Munn v. Illinois (1876),4 which upheld state regulation of grain elevator rates against a due process attack. "There is, indeed, no protection of any value under the constitutional provision," Field declared, "which does not extend to the use and income of the property, as well as to its title and possession."5 At last, as Commons noted, the Court held in the first Minnesota Rate Case6 "that not merely physical things are objects of property, but the expected earning power of those things is property; and property is taken from the owner, not merely under the power of eminent domain which takes title and possession, but also under the police power which takes its exchange-value."7

  Eminent Domain

  One of the most dramatic examples of the move away from a physicalist conception of property during the late nineteenth century can be seen in the law of eminent domain.

  For the purpose of determining when a taking of property has occurred sufficient constitutionally to require just compensation, post-revolutionary judges had developed a distinction between "direct" (compensable) and "consequential" (uncompensable) injuries.' The effect of this distinction was to restrict severely the obligation of the state-as well as that of state chartered railroad corporations-to pay damages for activity that, while concededly reducing the value of land, nevertheless did not amount to a physical trespass.

  By the middle of the century, the distinction between direct and consequential injuries had been further extended. As cities began to develop more extensive controls over land use, courts held that public regulation that reduced the value of land by restricting various uses was not a taking because it did not physically appropriate the land.' Restrictions on land use were thus also brought within the uncompensated category of mere consequential injuries.

  Until the 1870s, the law of eminent domain turned on various judicial definitions of what sorts of physical intrusions constituted a taking. Above all, it was well recognized that the state or its agents were legally immune from paying compensation for many of the forms of interference with land for which a private person would unquestionably have been required to pay.

  As the varieties of commercial and intangible property grew during the nine teenth century, land slowly receded as the model for property conceptions. As the most significant forms of new property were incorporeal, judges were pressed to redefine the nature of interference with property rights more abstractly, not as an invasion of some physical boundary but as any action that reduced the market value of property.

  The effort to generalize and abstract the idea of property in terms of market value brought to the surface some of the most significant contradictions concerning any legal definition of property and, at the same time, destroyed the power of the mechanisms existing within the previous system of thought for obscuring and concealing those contradictions. Abstraction, in short, rendered the system both more vulnerable to attack and more difficult, eventually, to defend.

  This shift in law away from physicalist conceptions of property based on land began to take shape during the last quarter of the nineteenth century. One of the most self-conscious and influential efforts to redefine these ideas was John Lewis's Treatise on the Law of Eminent Domain in the United States (1888). Lewis was "convinced that the earlier cases as to what constitutes a taking were based upon a radically defective interpretation of the constitution.. . ." 10 This interpretation "denied the right to compensation in many cases where it ought to be given. "11 These erroneous doctrines arose, Lewis observed, because "[t]hese early cases attacked the question wrong end first, so to speak, through the word taken instead of through the word property." 12 "We must . . . look beyond the thing itself, beyond the mere corporeal object, for the true idea of property. . . . The dullest individual among the people knows and understands that his property in anything is a bundle of rights."" Thus property does not consist of mere physical invasion but should be understood "to include every valuable interest which can be enjoyed as property and recognized as such.""

  If property, then, consists, not in tangible things themselves, but in certain rights in and appurtenant to those things, it follows that, when a person is deprived of any of those rights, he is to that extent depr
ived of his property . . . though his title and possession remain undisturbed. . . .15

  By insisting that "based upon the nature of property itself" every interference with "the possession, use or enjoyment" of property must be compensated, Lewis thus delivered a major challenge to existing legal doctrine. 16

  As late as the time of the Civil War, it was still regarded as settled that a taking meant that "property must be actually taken, in the physical sense of the word." 17 Yet, even this restrictive definition of eminent domain had been criticized for demonstrating "[t]he tendency under our system . . . to sacrifice the individual to the community."" A strong shift to individualism during the 187os eventually combined with a gradual move away from traditional physicalist definitions of property to produce a major judicial expansion in constitutional doctrine. Lewis thus was aided in his own reformulation by what he called these "radical changes" in judicial attitudes during "the last few years." 19

  In the leading case of Eaton v. Boston, Concord & Montreal R.R. (1872),20 the New Hampshire Supreme Court decided that any action by the state that interfered with the use of land was constitutionally a taking. The view that only a physical appropriation constituted a taking, the court declared, "seem[s] . . . to be founded on a misconception of the meaning of the term `property'. . . .1121

  In a strict legal sense, land is not "property," but the subject of property. The term "property" . . . "means only the rights of the owner in relation to it." "It denotes a right . . . over a determinate thing." "Property is the right of any person to possess, use, enjoy, and dispose of a thing."22

  This abstraction of the conception of property made sense as new varieties of legal interests, different from land, began increasingly to force themselves on the attention of courts. "A refusal to pay a debt is an injury to the property of the creditor," the New Hampshire Supreme Court noted two years later in explaining the Eaton case.23