12 - Changing the Path of the Law

Summary

Holmes is an irresistible figure for those of us with economics in our quiver, uttering as he does such sweet nothings as these: “For the rational study of 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.” Holmes was remarkably prescient in forecasting the ever-widening use of economic analysis in the study of the law, a phenomenon that has been well entrenched now for a quarter of the century that has passed since The Path of the Law was published. In his thoughtful essay, “The Path Dependence of the Law” (Chapter 11 of this volume), Clayton Gillette brings Holmes's prediction home, perhaps to the surprise (but undoubtedly to the posthumous delight) of the master himself, turning to economics to study the vision of the law that Holmes put forth. From this we get a sharp picture of what a Holmes with access to modern neoclassical economic analysis of law could have said about optimal degrees of deference to precedent.

My claim in this essay is that even if Holmes could have said these things that Gillette sets out in modern terms, he did not. Not because Gillette is in error about the economic approach to the question of optimality and precedent, but because Holmes was not engaged in an analytical project in The Path of the Law.