The Adjudicative Method of Oliver Wendell Holmes

Jordan J. Saint John, Stetson University

Abstract

Oliver Wendell Holmes was among this country’s most preeminent jurists, adjudicating cases for over fifty years, first on the Massachusetts high bench, and then on the United States Supreme Court. Yet he never explicitly revealed his method of adjudication. It is the thesis of this paper that Justice Holmes did have such a method, and that he revealed it implicitly.

The first three steps of the four-step method this author has identified were presented by Holmes in his classic address, The Path of the Law. There, he commended to students a three-step approach for fruitfully studying the law. However, the author discovered that Holmes appeared to use these same steps in his own process of judging a case. These steps are: discerning the governing principles within the rules bearing on the case, tracing the history of the rules to understand their adaptation to shifting public policy, and weighing the competing social policies at stake. The final step of Holmes’s adjudicative process, that of giving effect to the predominant policy, was supplied by the author from the thrust of Holmes’s academic writings, as encapsulated primarily in The Path, and in his other classic work, The Common Law.

After explicating Holmes’s three steps for mastering the law, and gleaning the fourth from his writings, the author analyzes several of Holmes’s opinions to test whether he applied this process to his work in judging cases. The author concludes that the first three steps of Holmes’s adjudicative method indeed mirrored his process for studying the law. His last step, that of sounding the public mind regarding the appropriate outcome, accorded with his central insight that the nature and development of the law: that it should always accord with public policy.