The University of Iowa
The University of Iowa News Services Home News Releases UI in the News Subscribe to UI News Contact Us


100 Old Public Library
Iowa City IA 52242
(319) 384-0007; fax (319) 384-0024

Release: Immediate

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 5:30 p.m.

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 Building.

Presenters include:

-- 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 Vocation."

-- 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.


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 of Iowa.

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 altogether."

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."