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John C.P. Goldberg, Style and Skepticism in The Path of the Law, 63 Brook. L. Rev. 225 (1997).

Abstract: As Neil Duxbury notes, Holmes consistently provokes strong reactions in his readers. The substance of those reactions, however, is notably inconsistent. Some tend toward the view that Holmes is an empty vessel; a font of legal aphorisms for every occasion. Others find Holmes to have advocated a bleak and noxious account of law that equates right with might. Still others seem to believe both. This panel on the European reception of The Path of the Law contains representatives of the first two positions. Dr. Duxbury argues that the success of Holmes's essay is proof that Holmes's significance owes less to the content and coherence of his ideas than to the stylish and suggestive manner in which he expressed them. In contrast, Professor Dyzenhaus reads the essay as advancing a comprehensive political theory that endorses an amoral and deeply cynical account of law and adjudication. Speaking in broad terms, there is another quite different scholarly take on Holmes--one evidenced on this panel by Professor Twining and in the papers of other conferees, including Judge Posner and Professor Grey. These interpreters maintain that, when handled with sufficient care, Holmes's rhetoric reveals a nuanced liberal theory of law and adjudication. Professor Twining, a representative of this "camp," insists, for example, that Holmes has been done a disservice by those who mistake the "bad man" for the hero of The Path of the Law, when in fact it represents only one aspect of Holmes's vision. As is perhaps already evident from the foregoing, I am sympathetic to the views of the latter group, and this article aims to promote their cause by taking issue with Duxbury and Dyzenhaus. Part I attempts to rebut Duxbury's argument that Holmes's legacy can be reduced to a notion of style divorced from substance. Part II maintains that Dyzenhaus errs in contending that Holmes's commitment to a version of legal positivism led him to endorse a cynical, statist account of law and a passive theory of judging. This contention, I argue, is mistaken both as a conceptual argument about legal positivism and as a descriptive claim about The Path of the Law. Part II concludes by offering evidence in support of the claim that Holmes's theories of law and adjudication are best described as a relatively moderate and liberal form of positivism.