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Boston University School of Law




Sanford Levinson and J.M. Balkin's paper ("L & B") is refreshing in the attention it pays to Holmes's oft-neglected "good [man], who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience."1 The good man provides a heuristic foil for Holmes's "bad man" whose conduct is motivated only by the potential material consequences, and thus L & B's analysis should help shed light on what is a puzzling metaphor in the folklore surrounding Holmes's The Path of the Law. L & B provide some interesting observations on the implications of Holmes's distinction between the good man and the bad man for understanding what appears to be a principal theme of The Path of the Law, the separation of law and morality. After pointing out that Holmes's bad man metaphor has provoked some rather extreme criticism not only of the speech but even of Holmes's character, L & B attempt to rehabilitate Holmes's bad man by offering, as a friendly amendment to Holmes's metaphor, Emerson's more palatable "self-reliant man."2

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