
When you're a huge nerd like me, you not only read court opinions for school, but you also get really excited to read those court opinions when it's written by a judge that you like to read. There are a few judges I *love* to read, even if I don't agree with everything they write. Judge Posner from the 7th Circuit Court of Appeals is one of those. The latest opinion we read from him [opens with](https://law.justia.com/cases/federal/appellate-courts/F3/17/209/566491/), "Richard Welge, forty-something but young in spirit, loves to sprinkle peanuts on his ice cream sundaes." And continues later:

> Even so, the defendants point out, it is always possible that the jar was damaged while it was sitting unattended on the top of the refrigerator, in which event they are not responsible. Only if it had been securely under lock and key when not being used could the plaintiff and Karen Godfrey be certain that nothing happened to damage it after she brought it home. That is true--there are no metaphysical certainties--but it leads nowhere. Elves may have played ninepins with the jar of peanuts while Welge and Godfrey were sleeping; but elves could remove a jar of peanuts from a locked cupboard. The plaintiff in a products liability suit is not required to exclude every possibility, however fantastic or remote, that the defect which led to the accident was caused by someone other than one of the defendants.

I mean, come on. Inject this into my veins.

Another fascinating thing about reading opinions while studying how one area of law has developed is seeing how judge's concurring and dissenting opinions in one case end up being the rationale for the majority in a later case. [Justice William Brennan ](https://en.wikipedia.org/wiki/William_J._Brennan_Jr.) of the Supreme Court was notorious for this in personal jurisdiction cases.

Here's a great example from my readings this week.

We're learning about strict products liability law, and the big crux of this area of tort law is that manufacturers and distributers don't have to be negligent (i.e. do anything "wrong" necessarily) for someone to recover against them. They are held strictly liable.

In 1944, strict products liability wasn't really a thing, but a justice on the California Supreme Court *really* wanted it to be a thing. In *Escola v. Coco Cola Bottling Co.*, [Justice Rodger Traynor](https://en.wikipedia.org/wiki/Roger_J._Traynor) wrote a concurring opinion advocating for strict products liability. He wrote:

> In my opinion, it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.

And here Justice Traynor is again in 1963, almost *twenty years later*, writing the same thing in the majority opinion in *Greenman v. Yuba Power Products, Inc.*, thereby creating strict products liability for tort actions in California:

> A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.

And just like that, strict products liability is birthed into existence. I love finding stuff like this and connecting the dots.

Concurring opinions


One of the reasons I went to law school was because of Oliver Wendell Holmes, Jr. It’s not like a had a conversation with him...obviously. He’s long dead. But his works, ideas, and life are not!

I read [Oliver Wendell Holmes: A Life in War Law and Ideas](https://www.dltn.io/posts/oliver-wendell-holmes-a-life-stephen-budiansky) a while ago, and the passion and zest Holmes had for the law, logical thinking, and clear writing was inspirational to me. I was fascinated with his work, I thought maybe I could *do* what he did. (Be a lawyer, that is.)

I went into school liking the book so much that Holmes felt like my “mentor” or at least a big inspiration for why I was there, and that was special. I held him in high regard.

So I was ecstatic when we were assigned to read an excerpt in Torts from his book, *The Common Law*. I was even more excited when a case he wrote the opinion for was in our torts book. But...then I read the case, and we talked about it in class, and my professor kind of dissed on him. We talked about it afterwards in his office hours, and he said from the opinion, it was clear that Holmes had *never* driven a car—which he probably hadn’t—yet was creating a rule of law that required people who came to a railroad track crossing to get out of their car and look to make sure no train was coming before they crossed in their car. That’s...ridiculous.

After our conversation, I looked in the biography to see what the author said about that opinion, and I now agree. Here’s what the author wrote:

> His zeal to write into the law his draconian views about risk led him to render one of his other most notoriously bad decisions on the Supreme Court...Holmes held that a railroad was not at fault in a fatal grade-crossing accident where the view of the tracks was obstructed to an approaching driver. Showing if nothing else that he had never learned to drive himself, Holmes ruled as a matter of law that it was a driver's duty to stop, get out of his car, and look down the tracks to see if a train was coming.
>
> [...] 
>
> [Louis] Brandeis thought the Court had had no business taking on these cases in the first place and that Holmes had pressed his colleagues to do so mainly because he was "incorrigible when there is an opportunity of curbing the power and province of a jury." 
> 
> [...] 
>  
> While in so many areas of the law Holmes would prove decades ahead of his time, his Darwinian attitudes toward injury cases seemed at times almost a throwback to the nineteenth century—holding firm to a conception of tort law that was rapidly being swept aside by the very kind of nuanced balancing tests and apportionment of responsibility between the parties that he otherwise so zealously advanced.

I thought this was really interesting because it shows:

1. How not-closely I read biographies. I read parts closely but other parts not, but I don’t remember any mention of this case in the book. (But I did apparently think it was ridiculous when I read it because I wrote marginalia that said, “This is ridiculous lol”.) And;\

2. How not everyone we admire from history was “perfect.” I struggle with this. After I read a book about Truman or Lincoln or Adams or Jefferson, I’m enthralled with who they were (or, at least who the book portrayed them to be), that I usually remember all of the good quotes and cool things that they did and forget about the not-so-good things they did decisions they made. I don’t think there’s anything wrong about admiring people from history, but I’m reminded of being a bit more cautious in the people I choose to model my life and career after.

This post didn’t really have a point, but I was excited to see how my love of learning and history that I’ve poured myself into the last three years is finally converging into something useful, I guess? It’s fun to see the people and ideas and history I’ve learned about appear in contexts other than a book I’m reading on my back porch.


Justice Holmes

Oliver Wendell Holmes Jr. believed in hard work and knowledge. He remarked, “most things in this world, half their terrors vanish when you walk up and tackle them.” The anxious thoughts about what “might” happen were often worse than the actual situation. Once “you lay hold of the lion’s skin it comes off and the same old donkey is underneath.”

As he edged toward turning ninety, he wrote:

> My old formula is that a man should be an enthusiast in the front of his head and a sceptic in the back. Do his damndest without believing that the cosmos would collapse if he failed. One should have the same courage for failure that many have for death.

When Chief Justice Melville Fuller delayed in getting the cases assigned to Holmes over to him, Holmes wrote him a note:

> Will you let me know as soon as convenient the cases you assign to me. I worry until I know. Nil actum reputans dum quid superesset agendum.

The Latin was a quote from Lucanus’s poem about Caesar: “He believed nothing done, so long as anything remained undone.”

Holmes had an unbelievable work ethic. In total, he wrote 873 opinions, a Supreme Court record. “He brought that same zest for duty to everything,” Budiansky wrote. “In 1865, at age twenty-one, he began keeping a list of every book he read, noting them down in tiny handwriting in a small leather…book, known to his secretaries as the ‘Black Book.’ By the time of his death the list exceeded four thousand, which worked out to more than a book a week for seventy years. The range was extraordinary: law, philosophy, sociology, literature, religion, history, economics, murder mysteries, poetry, science.”

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In his opinions, Holmes rarely used legal jargon. The quality of his prose demonstrated clear thinking. Learned Hand praised in Holmes’s opinions his “deadly eye” for “question-begging words” that disguised shallow thinking. “To Holmes, the act of writing was above all the act of thinking. Finding the right words was not rhetorical ornamentation: it was the very essence of his work of thinking though complex legal jargon.”

Note: What people mean by writing is thinking. It forces you to come up with words that describe what’s in your head. The mismatch between the words you use and the thoughts in your head is the actual process of your thinking being refined. You’re being forced to put a thought which contains many words and many meanings into a few words that each just have one meaning. That is thinking.

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Boston in the 1800s was a town full of pompous, educated men and women seeking to make their mark on the world through their words and books. Pretty much everyone was Unitarian. “Unitarianisms’s fundamental tenet was that God had given man a rational nature and a moral conscience, and expected him to use them. Salvation was no longer to be found in outward conformity to rigid doctrine or unquestioning obedience to an unknowable God, but lay rather within each man’s own conscience.”

This philosophy “now channeled into a faith that made self-improvement, the cultivation of virtue, and social conscience the ultimate expression of God’s will.”

Edward Everett Hale put it best: “There was the real impression that the kingdom of heaven was to be brought in…if we only knew enough”

This was the culture Oliver Wendell Holmes, Jr. was born into, and came to love.

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From a young age, Holmes showed an act for words and conversing. His report card at age six said, “Talk’s too much.” His brother Edward explained, “Wendell ends every sentence with a ‘but’ so as to hold the floor till he can think of something else to say.”

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Holmes understood the importance of focus. He wrote in a letter about his father:

> If he [his father] had the patience to concentrate all his energy on a single subject, which perhaps is saying if he had been a different man, he would have been less popular, but he might have produced a great work. I often am struck by his insight in things that he lightly touched. But, as I said, **it is the last five percent that makes the difference between the great and the clever**.

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As a boy, Holmes had a “futile shrinking from new things” that kept him from learning to ride or drive a horse or ice skate. But this was not a “physical timidity; it was rather that he already had a sense of what it took to truly master a subject, and an inkling of the dissatisfactions of half-knowledge.”

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Holmes did not value academics. In 1913, he warned Felix Frankfurter that academic life is…

> a withdrawl from the fight in order to utter smart things that cost you nothing except thinking them from a cloister…Business in the world is unhappy, often seems mean, and always challenges your power to idealize the brute fact but it hardens the fibre and I think is likely to make more of a man of one who turns it to success

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For Holmes, the war taught him “early on to face with courage and calmness the inevitable hardships of life.” In 1917, he told Harold Laski “I am converting misfortune into a source of satisfaction.” The author explains, “His limitless capacity for work was undoubtedly an emotional escape but it was also a need that he shared with many who had been through the intense experiences of war: civilian life just did not seem that exciting by comparison.” “Repose,” Holmes wrote, “is not the destiny of man.” **“Life is a struggle,” the author observes, “and it is the struggle that gives it meaning. The only thing to do was to give one’s all, and leave the consequences to fate.”**

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In a great quote about opportunity costs, Holmes said, “Remember, my friend, that every good costs something. Don’t forget that to have anything means to go without something else. Even to be a person, to be _this_ means to be _not that_.”

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During his first year of law school, a professor said he “had never known of anyone in the law who studied anything like as hard as Wendell.” “From the start,” the author wrote, “he took heart in the belief that mastery of a subject, and thorough professional expertise, was the only way to accomplish anything significant in life. A year and a half after receiving his degree, and still thoroughly immersed in a now self-directed program of voluminous readings in the law, he wrote William James of his ‘ever increasing conviction that law as well as any other series of facts in this world may be approached in the interests of science and may be studied, yes, and practiced, with the preservation of one’s ideals. I should even say that they grew robust under the regimen.'”

Holmes’ father’s dilettantism worked out well for Holmes, because it showed him what _not_ to do. He wrote:

> Since I wrote in December I have worked at nothing but the law. Philosophy has hibernated in torpid slumber, and I have lain “slutishly soaking and gurgling in the devil’s pickle,” as Carlye says. It has been necessary,—if a man chooses a profession he cannot forever content himself in picking out the plums with fastidious dilettantism and give the rest of the loaf to the poor, but must easy his way manfully through crust and crumb—soft, unpleasant inner parts which, within one, swell, causing discomfort in the bowels.

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Holmes became friends with both William and Henry James. William, while Holmes and he were close, was in a deep depression about the nature of the universe. In a world without a God, why did anything matter, James explained. Holmes, ever the realist, didn’t understand. He advised William (with words that a lot of us should take into account today re: politics and the “world” and everyone having an opinion on everything): “It seems to me that the only promising activity is to make _my_ universe coherent and livable, not to babble about _the_ universe.” This quote revealed Holmes’ philosophy about life: it doesn’t care about you, so get on with it and do your duty! (Or, rather, that’s my interpretation.)

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One night after working late in the law library, Holmes and a younger lawyer, George Upham, walked home together. Recounting their conversation sixty years later, Upham said Holmes:

> told me he had a theory that anyone could accomplish anything he wished, if only he wished it hard enough, continuously, morning, noon, and night, and perhaps subconsciously while sleeping

A half century after that conversation, Holmes told John Wu that to achieve anything of importance “takes time, the capacity to want something fiercely and want it all the time, and sticking to the rugged course.”

Holmes followed his own advice.

While editing a new edition of Kent’s Commentaries, Holmes became utterly absorbed in the work. “I have as you know given up all my time to Kent’s Commentaries and during the past year especially have hardly touched any other business,” he wrote in July 1872.

He kept his manuscript in a green back, and he took it everywhere with him. After dining one night with Henry James’s mother, she wrote a letter to Henry:

> Wendell Holmes dined with us a few days ago. His whole life, soul and body, is utterly absorbed in his _last_ work upon his Kent. He carries about his manuscript in his green bag and never loses sight of it for a moment. He started to go to Will’s room to wash his hands, but came back for his bag, and when we went to dinner, Will said, “Don’t you want to take your bag with you?” He said, “Yes, I always do so at home.”

This “green bag” was so precious to him that, once a month, he conducted fire drills with the servants and staff of his house and ensured they knew their first mission if flames were to ensue: rescue the green bag.

Chief Justice Charles Evan Hughes thought Holmes’ work on Kent is what allowed him to draft opinions faster than everyone else. The time Holmes spent in total immersion of the law “had given him an unusual and complete mastery of common law decisions and history. The effect of this in his habit as [a] judge was that, where others would be compelled to devote an enormous amount of time to the rediscovery of law, Holmes needed to make no re-examination—the law was at his fingertips.”

This is a great example of Dead Time and Alive Time.

The time in-between jobs he studied a ton, so that when he finally did get a court appointment, he was better prepared and smarter than everyone else. Such is how one should spend their days “waiting.” [[Notes/Active Patience|Active Patience]]

The author writes, “Success to Holmes above all meant accomplishing something original and of intellectual merit.” I relate to that strongly.

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On the bench, Holmes had little patience for lawyers, remarking that they take 5 to ten minutes to say things that could easily be said in one. To pass the time, he wrote letters while lawyers were presenting their cases. This gave him the reputation of attentiveness, because, naturally, people thought he was taking notes on the case.

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On writing, Holmes said, “One has to strike the jugular and let the rest go.”