Law Without Values: The Life, Work, and Legacy of Justice Holmes.

Law Without Values

Albert W. Alschuler The University of Chicago Press 5801 South Ellis Ave. Chicago, Illinois 60637-1496 332pp., $30

Reviewed by Peter J. Messitte

If you haven't read a wide sampling of Justice Oliver Wendell Holmes Jr.'s opinions and public writings, if you haven't read a good biography of the man, you probably should not start with Albert W. Alschuler's recent book on him, Law Without Values. Alschuler, Wilson-Dickinson Professor of Law at the University of Chicago Law School, has undertaken a total deconstruction of someone who was called, by no less than former U.S. Supreme Court Justice Benjamin Cardozo, "the great overlord of the law and its philosophy."

The problem is that Alschuler fails to convey a clear sense of why Holmes--a Massachusetts Supreme Judicial Court judge for 20 years and a U.S. Supreme Court justice for 30 more--continues to maintain such Olympian stature in American life, whatever his flaws, jurisprudential or otherwise.

In Holmes's world, says Alschuler, positing the thesis of his study,

   nearly every assertion of values beyond personal or, at most, class
   self-interest was pretense, and just about every ethical question could be
   reduced to an issue of dominance, power, death, and survival. Holmes saw
   human rights as no more than what "a given crowd ... will fight for," and
   he remarked that people will fight for their rights just as "[al dog will
   fight for his bone."

Beyond this, the author identifies Holmes as the progenitor of all the skeptical legal movements--law and economics, critical legal studies, critical race theory, and radical feminism--that characterize today's "indolent, cynical, and bitter" society.

Alschuler explores "moral skepticism in 20th-century American law" and attempts to show how Holmes's "power-focused philosophy" has influenced it. He explores Holmes's opinions, public writings, and private correspondence to show how his "battlefield conversion" during the Civil War, in which he served for three years and was wounded three times, shaped his worldview.

Along the way, Aschuler probes Holmes's character and personality and asks, "Would you have wanted Justice Holmes as a friend?" In the author's view, you probably would say no.

Let's give Alschuler this much: Holmes, by all accounts, had his dark side (and many before Alschuler have said so). Some of his opinions and writings, at least by today's standards, are distinctly uncharitable. He did, after all, write in the Supreme Court opinion upholding Virginia's involuntary sterilization law that "three generations of imbeciles are enough." He was vain, ambitious, and sometimes arrogant, and he frequently seemed to scorn human aspirations.

But bear in mind that Alschuler's book is not a biography. It is an analysis of Holmes's legal philosophy and its influence on legal thinking today. As such, the details of Holmes's personal life and personality, even his private correspondence with notable legal figures (which would be fair inquiry for a biographer) seem irrelevant and distracting. Holmes the legal thinker and profound influence is the Holmes of his public writings and opinions, not the Holmes who privately penned personal dislikes, who may have been ambitious, or who delighted in flattery to excess. After all, Joe DiMaggio is still best remembered for his extraordinary exploits on the baseball diamond, not for the quirks of his personality or his fling with Marilyn Monroe.

Holmes was a legal scholar of the first rank. His book The Common Law--despite Alschuler's surprising, essentially wholesale dismissal of it--is considered by such luminaries as Judge Richard Posner of the Seventh Circuit "the best book on law ever written by an American." Holmes's article "The Path of the Law," which Alschuler chips away at in almost as many pages as the original article itself, has been acknowledged by some as "the single most important essay ever written by an Justice Oliver Wendell Holmes Jr. is an Olympian figure in American legal history. American on the law." Holmes's later opinions in support of free speech and legislative experimentation have proved prescient. His writing style--crisp, clear, epigrammatic--has never been matched by anyone inside the law and very few outside. This is the Holmes that a reader needs to get to know first.

One would do better to start with Posner's own Essential Holmes, a collection of Holmes's articles, opinions, and letters. Another good starting point is Liva Baker's The Justice from Beacon Hill, which examines Holmes's life and times in more well-rounded fashion. From there, one could move on to Alschuler.

But Law Without Values, in the end, is engaging only in a law-school-seminar sort of way. It employs quaint law-professor-type examples, including odd references to Steve Allen's character The Answer Man and Johnny Carson's Carnack the Magnificent. It ends up proposing an alternative to Holmes's views on law--a "new epistemology" of "coherency, reflective equilibrium, holism, and inference to the best explanation"--that, given the few pages in which it is developed, is entirely too facile.

Holmes, for better or worse, remains the elusive, complex Yankee from Olympus. Law Without Values seems just another mortal's imperfect glimpse of the icon from afar.

Peter J. Messitte sits on the U.S. District Court for the District of Maryland.