My Georgetown Law colleague John Mikhail has posted Holmes, Legal Realism, and Experimental Jurisprudence, which is forthcoming in The Cambridge Handbook of Experimental Jurisprudence:
--Dan ErnstIn his very first published essay in The American Law Review, "Codes, and the Arrangement of the Law" (1870), O.W. Holmes made a series of penetrating observations about the common law that can still be profitably used by researchers in experimental jurisprudence today. First, Holmes observed that common law reasoning is a process in which judges decide the case before determining the principle on which that decision rests. Second, he noted that this decision is typically easy, fast, and intuitive, while finding its rationale is often difficult, slow, and deliberate. Third, Holmes suggested that this behavioral pattern applies not only to judges and lawyers, but to “other men,” that is, to human beings generally. Fourth, he observed that legal intuitions are often correct, whereas the reasons first offered to explain and justify them are often mistaken. Fifth, he suggested that common law reasoning can be modeled as a practical syllogism, in which the relevant legal rule is the major premise, the facts of the case constitute the minor premise, and the intuitive judgment is the conclusion. Finally, Holmes implied that the common law is not “a brooding omnipresence in the sky” or a body of rules existing “outside the head” of those who discern and apply them, but a rule-governed mental capacity of some sort. Each of these points anticipated key insights associated with strands of Legal Realism, and each offers valuable lessons for experimental jurisprudence. This forthcoming chapter in The Cambridge Handbook of Jurisprudence elaborates upon these interrelated themes and draw out some of their implications.
Oliver Wendell Holmes, Jr. (NYPL)
