O.W. Holmes on Agency, Torts, and Other Things.

Sorry if this is pathetically boring. I’ve never blogged before, although I’ve certainly been tempted in the past. This semester, I have been compelled to write a regular blog for a Theory of Law class, which I lovingly refer to as “Phi-Law-Sophy,” and figured since I have to do that anyway, I may as well take the pieces I write for it and post them here for general consumption.

As a general rule, I understand that nobody is going to give a rat’s ass what I post here – but it is a cheap way to caress my ever-expanding ego. Plus, maybe I’ll learn a few things in the end. 


Without further ado, my first attempt at an academic blog:

The superfluous language of the first Holmes reading on Agency makes for an adventure in annoyance, which leads to an over-use of my iPhone’s dictionary app, then through several stages of desperation, and self-doubt, before I came to the inevitable conclusion that Holmes basically made his point in the first two paragraphs. You really have to love Supreme Court justices – their ability to say nothing in 10,000 words is rivaled only by Malcolm Gladwell’s.

When one cuts through the exhaustive verbiage, one arrives at the assertion that an agent is, for myriad purposes, an individual made in possession of the authority to act on behalf of another. These actions take the form, typically, of commercial transactions, although they are not limited thereto. The delegation of authority from one to another for the other to act on one’s behalf does not come without risk – a tort committed by the agent is the same as a tort committed by the principle, at least in Holmes’ view. I do not agree that it is that simple, however.


Let’s consider a scenario:

  • A defendant is prosecuted for crime X. 
  • The prosecutor is, by definition, an agent. Specifically, the prosecutor is an agent of the government.
  • In violation of the law – and basic ethical standards – the prosecutor fails to submit exculpatory evidence.
  • In so doing, the prosecutor has committed a crime and a tort.
  • Has the state committed a crime? Has the state committed a tort?

The prosecutor has, ostensibly, acted on behalf of the state in destroying exculpatory evidence. However, the state as a principle has clearly not given its agent the authority to act in that way on its behalf, simply by dint of declaring such actions criminal. Thus, how can it be said in this instance that the agent’s tort is the tort of the principle?


Let’s consider another scenario:

  • A defendant is prosecuted for crime X.
  • His defense attorney is his agent. 
  • The defense attorney knowingly and intentionally violates privilege and submits inculpatory evidence.
  • He has committed a crime, and a tort.
  • Can it truly be said that the crime and tort committed by the agent here can be rightly called the crime and tort of the principle? That defies logic.

What remains for one to ask in this case, is whether or not one accepts the notion that, as Dworkin posits in “Law’s Empire,” that (among other theories of law) law is the philosophical judgement of the beholder – where all matters of fact are agreed upon and a disagreement still exists, that disagreement is therefore a disagreement in theory, which leads directly to to questions of what the law should be in the mind of the adjudicator. In which case, there are several answers to the above scenarios. 


4 thoughts on “O.W. Holmes on Agency, Torts, and Other Things.”

  1. Personally I love Holmes and believe he writes somewhat eloquently. That being said, Holmes is an advocate of both statistics and economics and argued that judges should be well versed in the disciplines. This is because it would help judges make rulings that were utilitarian. If Holmes argued that the principle is responsible for any of the agents wrong doing is it possible this is an economic argument?

    Consider who is more likely to be either an agent or a principle. A principle in most cases would seemingly be a busiess owner, corporation, government, rich dude etc. and arguably in most cases they are knowingly taking the risk of a particular action by hiring the agent. They can afford to take this risk and are doing it for the reward. Conversely, and agent in many cases cannot afford to take a risk and will not be rewarded beyond her/his duties. As an agent the risk should be removed from there actions to some reasonable measure. They could already be fired after all and will likely be trying not to commit a tort. Thus, it seems to me that the principle takes the tort because he or she either can afford to or will be reaping te rewards of the actions committed.

      1. When I hire a financial planner, do I have a reasonable expectation that he will handle my funds in compliance with the various applicable laws and ethic standards, or do I assume that if he violates those laws and standards without my consent I am to blame?

        In other words, does my reasonable expectation out weight the risk of the assignment of blame? When I hire a financial planner, I do not risk blame for his unauthorized torts on my behalf, although the onus will be on me to show by preponderance of evidence that the tort on my behalf was unsanctioned.

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