CONTACT: SCOTT HAUSER
100 Old Public Library
Iowa City IA 52242
(319) 384-0007; fax (319) 384-0024
Renowned legal scholars gather at UI Jan. 24-25 for conference on Holmes
IOWA CITY, Iowa -- Former U.S. Attorney General Richard Thornburgh and University
of Chicago law professor Martha Nussbaum will be among the nationally known
legal scholars gathering at the University of Iowa College of Law to discuss
the influence of famed Supreme Court Justice Oliver Wendell Holmes Jr. during
a conference Friday, Jan. 24 and Saturday, Jan. 25.
"'The Path of the Law' in the 20th Century" will use the centennial
anniversary of Holmes' pivotal article, "The Path of the Law," to
look at the intellectual legacy of one of the most influential figures in
American legal scholarship.
"The Path of the Law," published in the Harvard Law Review in 1897,
became the basis for the "legal realism" school of law in the United
States and continues to have profound influence on the study, teaching and
practice of law, says Steven J. Burton, William G. Hammond Professor of Law
at the UI and an organizer of the symposium.
Recent work in law and economics, law and society, legal history, critical
legal studies, feminist legal theory, and other ideas in legal scholarship
can all be traced, in some way, to groundwork laid by Holmes, Burton says.
"It's is hard to think of any essay with a greater impact on contemporary
legal thought," Burton says. "Holmes is the intellectual grandfather
of contemporary legal education."
The symposium, which is free and open to the public, is the inaugural event
in the newly created Richard S. Levitt Distinguished Lectureship Series.
The symposium will begin at 1 p.m. Friday, Jan. 24 with remarks by Mary Sue
Coleman, president of the UI. Papers will be presented from 1:45 p.m. to approximately
Presentations will begin at 9 a.m. Saturday, Jan. 25 and continue until 4
p.m. All activities will take place in the Levitt Auditorium of the Boyd Law
-- Robert W. Gordon, Johnston Professor of Law, Yale Law School, at 1:45 p.m.
Jan. 24, on "'The Path of the Law:' A Sermon and Meditation on the Lawyer's
-- Clayton P. Gillette, Perre Bowen Professor of Law, University of Virginia
School of Law, at 3:30 p.m. Jan. 24, on "The Path Dependence of the Law."
-- Martha C. Nussbaum, Ernst Freund Professor of Law and Ethics, University
of Chicago Law School, at 9 a.m. Jan. 25, on "Universal and Particular:
Tension or Commentary?"
-- Scott Brewer, assistant professor of law, Harvard Law School, at 10:45
a.m. Jan. 25, on "Discovering Inference and Intellectual Due Process
in 'The Path of the Law.'
-- Catherine Wells, associate dean for academic affairs and professor of law,
Boston College Law School, at 1 p.m. Jan. 25, on "Holmes as Ethical Pragmatist."
-- Brian Leiter, associate professor of law, University of Texas School of
Law, at 2:45 p.m. Jan. 25, on "The Realistic Attitude and Economic Analysis
of the Law."
N. William Hines, dean of the UI College of Law, says the inaugural symposium
kicks off the Levitt Distinguished Lectureship Series with an outstanding
gathering of national scholars.
"The Levitt Lectureship will undoubtedly become the premier intellectual
and professional event at the College each year," Hines says. "We
are very pleased to have assembled such a distinguished group of speakers
for the Holmes symposium."
Thornburgh, who served as Attorney General of the United States from 1988
to 1991 and was governor of Pennsylvania from 1979 to 1987, will be a symposium
commentator, asking questions of and discussing issues with presenters. Thornburgh
is also serving as a practitioner-in-residence at the UI during a four-day
visit to the College of Law.
Other commentators include Thomas Grey, Stanford University Law School; Gillian
K. Hadfield, University of Toronto Faculty of Law; Dan M. Kahan, University
of Chicago Law School; Jody Kraus, University of Virginia School of Law; Sanford
Levinson, University of Texas School of Law; and David Jay Luban, University
of Maryland Institute for Philosophy and Public Policy.
Burton says the 100th anniversary of the publication of "The Path of
the Law" provides an opportunity to assess basic issues in legal education,
law practice and legal scholarship.
The public is welcome to participate in the conference. Each presentation
includes opportunities for discussion and questions from the audience.
The centennial of the publication of "The Path of the Law" coincides
with the sesquicentennial of the UI.
OLIVER WENDELL HOLMES JR.
Perhaps the most influential member of the American legal profession, Oliver
Wendell Holmes Jr. (1841-1935) served on the United States Supreme Court from
1902 to 1932. Before that, Holmes had served on the Supreme Judicial Court
of Massachusetts for 20 years.
While a vigorous and forceful proponent for his views on the U.S. Supreme
Court, Holmes was often in the minority when deciding cases. He earned the
title "The Great Dissenter" for the clarity with which he expressed
his opinions. He is probably best known outside legal circles as the source
of the phrase, "You can't yell, 'Fire!' in a crowded theater." (Writing
for the majority in the 1919 case of Schenk vs. the United States, in which
the court upheld laws limiting the right of protest against the draft, Holmes
wrote, "The most stringent protection of free speech would not protect
a man in falsely shouting fire in a theater and causing a panic.") He
retired from the court at age 91.
As a legal scholar, Holmes is known as one of the major originators of "legal
realism," a school of thought that argues lawyers should use the law
to achieve social ends. According to this view, legal scholarship and training
should emphasize how the law is used in practice rather than the logical or
historical foundations of the law.
Holmes' 1881 book, "The Common Law," and his 1897 essay "The
Path of the Law" were launching points for the most important approaches
to legal scholarship and practice still in vogue today.
Here are some of the themes of "The Path of the Law," as summarized
by Steven J. Burton, William G. Hammond Professor of Law at the University
The Predictive Theory of Law:
-- Definition of Law: "The prophecies of what the courts will do in fact,
and nothing more pretentious, are what I mean by the law."
-- Law as Coercion: "A legal duty so called is nothing but a prediction
that if a man does or omits certain things he will be made to suffer."
--Rules and Principles as Predictions: Statutes, treatises, and case reports
gather "the scattered prophecies of the past upon the cases in which
the axe will fall. The whole meaning of every new effort of legal thought
is to make these prophecies more precise, and then generalize them into a
thoroughly connected system."
Legal and Moral Skepticism: We should focus on the law from the bad person's
point of view; "[f]or my own part, I often doubt whether it would not
be a gain if every word of moral significance could be banished from the law
Legal Theory as Causal Explanation: "The postulate on which we think
about the universe is that there is a fixed quantitative relation between
every phenomenon and its antecedents and consequents." Outside the law
of cause and effect, "We cannot reason."
"Real" Grounds for Judicial Decisions: Judges, for their part, should
"recognize their duty of weighing considerations of social advantage"
and not "leave the very ground and foundation of judgments inarticulate,
and often unconscious."
"Law And ...": "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."