Monday, February 11, 2013

Wells on Holmes

Catherine Wells, Boston College Law, has posted her important series of articles on Oliver Wendell Holmes, Jr.  The first is Legal Innovation within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr., which appeared in the Northwestern University Law Review 82 (1988): 541-95
Library of Congress
Oliver Wendell Holmes, Jr. is one of the dominant figures in American jurisprudence. As a scholar, he wrote prolifically about legal theory and legal history. His book The Common Law is one of the most influential studies of the common law tradition; it has shaped the views of American legal scholars for several generations. In addition, Holmes spent nearly forty years as a judge-first as a justice on the Massachusetts Supreme Judicial Court and later as an Associate Justice of the United States Supreme Court. On the bench, Holmes was a formidable presence influencing the development of American law. His judicial opinions are both numerous and memorable. More than fifty years after his death, casebooks still include many of his opinions and legal periodicals frequently contain analyses of his judicial philosophy.' Indeed, Holmes is so central to the American legal tradition that understanding what Holmes thought about law is an important step in understanding one's own thoughts on legal theory
The second is Holmes on Legal Method: The Predictive Theory of Law as an Instance of Scientific Method, Southern Illinois Law Review 18 (1994): 329-345:
When it comes to legal method, Holmes is well known for two claims: first, that lawyers and legal scholars should employ an empirical rather than a deductive method and second, that the task of lawyers is to predict the actions of judges. These claims raise a number of questions. Three questions, in particular, seem to recur among thoughtful readers: (1) Why does Holmes, leader of the revolt against formalism, place so much emphasis on the role of logical analysis in law? (2) If legal method is empirical, what is law "empirical" about? What are the facts or the data upon which an empirical science of law should be based? and (3) Under the predictive theory of law, what is it that a judge is supposed to do when (s)he decides a case? Does the judge decide a case by predicting his or her own decision?
The third is Old Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr., Brooklyn Law Review 63 (1997):59-85:
Whether Holmes was the greatest American jurist is a question for debate. What needs no debate is the fact that Holmes is the most published, the most discussed, the most praised and the most criticized judge in American history. In view of this fact, one might well doubt the need for yet another paper on Holmes. The sheer number of studies, discussions, collections and biographies raises question as to whether we have not already said enough. Is there any point-besides the obvious pleasure of a good symposium-to more discussion of Holmes and his effect on American law? For a number of reasons, I think that the answer to this question is a surprising "yes." No one would dispute that Holmes is an important source of our understanding about the American legal tradition. It is not just that his writings are widely read; it is also that lawyers and scholars have treated him as a particularly important symbol of American law, who-depending on your viewpoint-should be praised for his virtues or condemned for his shortcomings. For example, some scholars think that Holmes deserves high praise for rescuing American law from the rigidity of formalism.' Others disagree: they suggest that Holmes was insufficiently principled; that he was self serving, insensitive and cynical; and that, in view of these shortcomings, he is an unworthy representative of American law.

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