Repudiating the Holmesian Bad Man through Contextual Ethical Reasoning: The Lawyer as Steward
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Repudiating the Holmesian Bad Man
through Contextual Ethical Reasoning:
The Lawyer As Steward*
Keith R. Fisher**
This year marks the centennial of the American Bar Association's Canons of
Professional Ethics.' Only a few years before the call for the Canons by ABA Presi-
dent Henry St. George Tucker2, and a mere 11 years before their adoption, Oliver
Wendell Holmes, Jr. penned what Judge Richard Posner believes may be the best
article-length work on law ever written,3 the famous address4 The Path of the Law.5
*Copyright © 2007-2008 by Keith R. Fisher. All Rights Reserved.
**A.B. Princeton University, J.D. Georgetown University. Visiting Professor of Law, North-
eastern University School of Law.
1. 33 A.B.A. Rep. 55-86 (1908) [hereinafter the Canons].
2. Tucker (known as Harry) was a former Attorney General of the Commonwealth of Virginia
and a three-term U.S. Congressman (during which time he chaired the House Judiciary Committee
for four years) who subsequently served as Professor of Law at, and later as Dean of, Washington &
Lee University Law School. When not chosen as President of the University (after having served
as Acting President), he left it in 1902. See Washington & Lee University School of Law, Henry
St. George Tucker, available at http://www.law.wlu.edu/faculty/history/tuckerhs.asp (last visited
Dec. 28, 2007). The scion of a family of distinguished Virginia lawyers (his eponymous grandfather
was a judge, congressman, cavalry captain during the War of 1812, President of the Court of Appeals
of Virginia, and law professor at the University of Virginia-see BIOGRAPHICAL DIRECTORY OF THE
U.S. CONGRESS, 1774-PRESENT, available at http://www.bioguide.congress.gov/scripts/biodisplay.
pl?index=T000398 (last visited Dec. 28, 2007)-and his father, John Randolph Tucker, founded the
Washington & Lee University Law School), Tucker was (along with his father) co-author of a distin-
guished treatise on constitutional law. JOHN RANDOLPH TUCKER & HENRY ST. GEORGE TUCKER, THE
CONSTITUTION OF THE UNITED STATES: A CRITICAL DISCUSSION OF ITS GENESIS, DEVELOPMENT,
AND INTERPRETATION (1899). For all his professional attainments, he was obviously a privileged
product of his times, who opposed amending the Constitution to allow women the vote, as argued
by the title essay in a collection (originally entitled Local Self-Government) of lectures Tucker
delivered at the Yale Law School. HENRY ST. GEORGE TUCKER, WOMEN'S SUFFRAGE BY CONSTITU-
TIONAL AMENDMENT (1916). For more information on Tucker, see generally JAMES GRAFTON ROG-
ERS, AMERICAN BAR LEADERS: BIOGRAPHIES OF THE PRESIDENTS OF THE ABA 1878-1928 (1932).
3. Richard A. Posner, Introduction to THE ESSENTIAL HOLMES: SELECTIONS FROM THE LET-
TERS, SPEECHES, JUDICIAL OPINIONS, AND OTHER WRITINGS OF OLIVER WENDELL HOLMES, JR., at x
(Richard A. Posner ed., 1992).
4. Though familiar to generations of lawyers as an essay, it was in fact an address delivered
by Holmes on January 8, 1897 at the dedication of the new hall of the Boston University School
of Law.
5. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARv. L. REV. 457 (1897) [hereinafter
Holmes, Path].](ViewImageLocal?handle=hein.journals/profeslwr2008&div=8&collection=&method=preview&ext=.png&size=3)
Repudiating the Holmesian Bad Man through Contextual Ethical Reasoning: The Lawyer as Steward
Repudiating the Holmesian Bad Man through Contextual Ethical Reasoning: The Lawyer as Steward