The "Bad Man," the Good, and the Self-Reliant, 78 B.U. L. Rev. 885 (1998)(with Sanford Levinson).
When we think of the many famous ideas associated with Justice Oliver Wendell Holmes—and with The Path of the Law in particular—one of the first that comes to mind is his famous image of the "bad man." Although this metaphor has been one of Holmes's most lasting legacies, it has also been one of his most troubling as well, for it suggests that the deepest truths about the law can be found by adopting the perspective of someone who is "bad." It is one thing to say that wisdom comes from the mouths of babes or even from fools; it is quite another to say that we should look to the worst among us for insight.
Date of Authorship for this Version
Balkin, Jack M. and Levinson, Sanford, "The "Bad Man," the Good, and the Self-Reliant" (1998). Faculty Scholarship Series. Paper 261.