In January 1899, Oliver Wendell Holmes Jr., an Associate Justice of the Massachusetts Supreme Judicial Court, addressed the New York State Bar Association. It was his last major extra-judicial address.
In this speech, Holmes derided judges and lawyers who habitually and lazily recited obsolete common law doctrines, generalizations and "empty words" in their work. About judges he wrote:
"Judges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties. Every living sentence which shows a mind at work for itself is to be welcomed. It is not the first use but the tiresome repetition of inadequate catch words upon which I am observing,---phrases which originally were contributions, but which, by their very felicity, delay further analysis for fifty years. That comes from the same source as dislike of novelty,---intellectual indolence or weakness,---a slackening in the eternal pursuit of the more exact."
In doubtful cases, where precedent is lacking, judges make policy decisions: "Where there is doubt the simple tool of logic does not suffice, and even if it is disguised and unconscious the judges are called on to exercise the sovereign prerogative of choice."
He urged that the reasons for common law rules be reexamined, especially through historical research. "Every one instinctively recognizes that in these days the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants."
He believed that "science" could free law-makers from an over dependence on tradition, assist a judge by "substituting a scientific foundation for empty words" and guide developments in the law by appraising conflicting social policies.
"Law in Science and Science in Law" was published later that year in the Harvard Law Review.