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Taming the Past1 and the image that graces its cover are meant to call to mind the cave-dwelling dragon of which Oliver Wendell Holmes spoke in his famously iconoclastic 1897 vocational address The Path of the Law.2 While the speech is most commonly associated with "our friend the bad man" and the prediction theory of law,3 Bob Gordon redirects our attention to what the great jurist had to say about the place of history in "the rational study of the law."4 As Gordon reminds us, Holmes assigned history a role that was preliminary and mostly negative, speaking of it as "the first step toward an enlightened skepticism, that is, toward a deliberate reconsideration of the worth of . . . [legal] rules."5 There was a tinge of the romantic in this rendering of historical inquiry, for in his next breath Holmes figured the quest for the past in heroic terms: "When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is . . . his strength."6 But Holmes emphasized that "to get him out is only the first step," implying that the historians work was then done.7 The next step was "either to kill him, or to tame him and make him a useful animal," a decision Holmes implied should be made by "the man of statistics and the master of economics."8 Holmes was contemptuous of legal arguments and practices that proceeded solely or blindly upon the authority of the past. And he "look[ed] forward to a time when the part played by history" in the study of law "shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them," which he took to be the province of the social sciences.9
In arraying himself against appeals to the past as a source of authority, Holmes qualifies as a practitioner of critical history in Gordon's book. But the Victorian jurist's modes of contending with the dragons of our legal past do not appear as an unambiguously good model in Taming the Past. Indeed, a pronounced ambivalence runs through all...