Oliver Wendell Holmes, Jr., Legal Theory, and Judicial RestraintCambridge University Press, 2006 M12 11 Oliver Wendell Holmes, Jr, is considered by many to be the most influential American jurist. The voluminous literature devoted to his writings and legal thought, however, is diverse and inconsistent. In this study, Frederic R. Kellogg follows Holmes's intellectual path from his early writings through his judicial career. He offers a fresh perspective that addresses the views of Holmes's leading critics and explains his relevance to the controversy over judicial activism and restraint. Holmes is shown to be an original legal theorist who reconceived common law as a theory of social inquiry and who applied his insights to constitutional law. From his empirical and naturalist perspective on law, with its roots in American pragmatism, emerged Holmes's distinctive judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical legal positivism and contrasts him with a range of thinkers. |
Contents
| 10 | |
Section 2 | 26 |
Section 3 | 46 |
Section 4 | 61 |
Section 5 | 80 |
Section 6 | 100 |
Section 7 | 118 |
Section 8 | 137 |
Section 9 | 157 |
Section 10 | 171 |
Other editions - View all
Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint Frederic R. Kellogg No preview available - 2011 |
Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint Frederic R. Kellogg No preview available - 2006 |
Common terms and phrases
Amendment American analytical appears applied approach Austin authority become called Cambridge century clear Collected common law conception conduct conflict consistent constitutional contemporary context Court criticism custom decide decisions determine discussed dissent distinct due process duties early emerged Essays evidence experience fact first Formative Essays given grounds Hart Harvard historical Hobbes Holmes Holmes’s implied important influence interests interpretation John judges judicial jurisprudence jury Justice language later leading Lectures legislation liability limited logical majority Mass matter meaning mind moral nature negligence noted notion objective opinion original particular person Philosophy Philosophy of Law political Pollock positive positivism positivist practice precedent principles problem question reading reason reference Reflections relation rules scholars sense separation skepticism social society sovereign standards suggest Supreme Court term theory Torts tradition understanding University Press York
Popular passages
Page 133 - Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.
Page 159 - ... no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people.
Page 128 - Consider what effects, that might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object.
Page 155 - All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.
Page 165 - Otherwise a Constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus.
Page 66 - Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind ; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary.
Page 67 - For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament, 'overladen (as Sir Edward Coke expresses it) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law'.
Page 139 - The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned.