Tuesday, October 8, 2013

Something Else to Remember When Reading a Holmes Opinion

Credit: Wikimedia Commons
Long after the death of Oliver Wendell Holmes Jr., W. Barton Leach collected the reminiscences of the justice's legal secretaries.  George Leslie Harrison, who served Holmes in 1913-14, recalled an occasion when, after reading the draft of an opinion, he could not see how Holmes had addressed a point in contention.  When he said as much to Holmes, the justice replied that perhaps he should reread the opinion.  After doing so, Harrison still could not see that it addressed the point and returned to the justice.  Holmes pointed to a word in the opinion.  As Leach had it, “Harrison looked it up in the dictionary and found a secondary meaning which made it possible to construe the sentence in such a way as to dispose of the contention.”  The law clerk returned to Holmes and said, “All right, Mr. Justice, but I still think that there isn’t one man in a thousand who would understand the sentence that way.”  To which Holmes replied: “I write for that man.”

2 comments:

Shag from Brookline said...

It isn't clear that the opinion referenced in the post was actually published, and if it was, whether Holmes made any changes following his clerk's comments. Some of us would like to latch onto the opinion to find that elusive word and sentence and determine whether "I am that one man in a thousand who would understand the sentence that way."

I eagerly await the next clue.

Dan Ernst said...

Shag, the post includes all the clues I've got. If anyone wants to read Holmes's opinions in the 1913 Term and nominate likely candidates, I'll certainly post them.