Query on Sosa and jurisprudence

[Tom Grey]

In response to Mark Tushnet, I think both Souter and Scalia are right to
see hyperbole in Holmes's rhetoric in Jensen and Black and White -- that it
was a "fallacy" that there was any such thing as a general common law
instantiated by the non-statutory law of the various common-law
jurisdictions. What do we examine our students on, now as then, in our
torts and contracts courses in national law schools? What was Holmes
writing about in the substantive chapters on the content of law of tort,
contract and property in The Common Law?  ("The object of this book is to
present a general view of the Common Law.") He didn't confine himself to a
formal or procedural account, saying it was whatever the judges said it was
-- most of his book was a series of claims, many quite detailed, about the
substantive content of the (capitalized) "Common Law."

Holmes actually thought the common law was a quite (but not wholly)
determinate body of rules of principles which could be discerned by
historical and conceptual examination of the decisions of common-law
courts, of the kind he carried out in those chapters in his book. He did
want to get (most) of the traditional natural law elements out of the
account of this body of law, but even there he didn't go all the way.  He
spoke in the third paragraph of the two errors he wanted to avoid. The one
was parochially assuming that one's own way is the only way. But the other
was "asking too much of history. We start with man full grown. It may be
assumed that the earliest barbarian whose practices are to be considered,
had a good many of the same feelings and passions as ourselves." There are
a number of passages in the book and in his later writings where he brings
some natural law of his own to bear as part of a legal analysis -- his
treatment of adverse possession near the end of The Path of the Law is a
good example.

Holmes was particularly given to hyperbole as a rhetorical device; it kept
company with his love of paradox. X is totally Y and oh by the way it's
ever so not-Y -- rather than X is sorta Y. I have a riff on this at 63
Brooklyn L Rev 19, 29-34. I think the passages mentioned by Mark in
Souter's and Scalia's opinions are responding to this, rather than backing
away from Holmes's actual (by contemporary standards somewhat bland)
jurisprudence of the common law, which I read them as adopting in Sosa.

Thomas C. Grey
Stanford Law School
tgrey at stanford.edu