The Holmesian Bad Man's First Critic

Abstract

Holmes’s “bad man” view of the common law and his effort to capture contractual liability as option to perform or pay damages grew out of a debate he was having with another legal scholar in an exchange of letters that has largely been forgotten. Holmes’s opponent in this debate — Edward Avery Harriman — was in many respects a kindred spirit, someone who, like Holmes, was a positivist trying to fashion an objective account of the law of contract. Their disagreement was not so much about the role that morals and ethics ought to play in the law of contract, but rather about whether Harriman’s own theory — one that distinguished between primary and secondary obligations — provided the best explanation of the law of contract. The essay recaptures the contours of the debate and reassesses Harriman’s alternative theory of contract.

Keywords: Oliver Wendell Holmes Jr., "Path of the Law"