Joseph P. Tomain
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195333411
- eISBN:
- 9780199868841
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195333411.003.0006
- Subject:
- Law, Philosophy of Law
This chapter examines Oliver Wendell Holmes Jr's speech, The Path of the Law. Holmes intended to be provocative in his speech when he wrote, “I often doubt whether it would not be a gain if every ...
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This chapter examines Oliver Wendell Holmes Jr's speech, The Path of the Law. Holmes intended to be provocative in his speech when he wrote, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.” Holmes was indeed troubled by the confusion of moral ideas with legal ones, and he argued strenuously for their separation. However, he was not unaware of the relationship between law and morality. His speech explains their relationship and his separationist argument. Holmes was telling us how to understand the seemingly contradictory impulses of the law. First, we must clearly understand what the law says with moral talk stripped away. Then we can critique man's law against a higher law or Justice standard.Less
This chapter examines Oliver Wendell Holmes Jr's speech, The Path of the Law. Holmes intended to be provocative in his speech when he wrote, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.” Holmes was indeed troubled by the confusion of moral ideas with legal ones, and he argued strenuously for their separation. However, he was not unaware of the relationship between law and morality. His speech explains their relationship and his separationist argument. Holmes was telling us how to understand the seemingly contradictory impulses of the law. First, we must clearly understand what the law says with moral talk stripped away. Then we can critique man's law against a higher law or Justice standard.
David E. Shi
- Published in print:
- 1996
- Published Online:
- October 2011
- ISBN:
- 9780195106534
- eISBN:
- 9780199854097
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195106534.003.0004
- Subject:
- History, History of Ideas
The Civil War was a pivotal event in American political and social history. However, it also served as the hinge in the nation's cultural development, a turning point after which intellectual life ...
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The Civil War was a pivotal event in American political and social history. However, it also served as the hinge in the nation's cultural development, a turning point after which intellectual life and artistic expression were perceptibly different. Underneath the Civil War's romantic veneer lurked grim realities. Gender roles especially felt the conflict's transforming impact. Most of America's promising young writers and artists did not participate in the Civil War. The war reinforced Oliver Wendell Holmes, Jr.'s developed skeptical materialism. Walt Whitman had urged “relentless war” to end secession, but he, too, changed his exuberant tone after witnessing the war's grim reaping. The war's “mortal reality” gave greater depth, poignancy, and clarity to Whitman's Drum-Taps. Over the years Romanticism formed around the Civil War, making it stirringly unreal. The soul-numbing war depicted in John Esten Cooke and John W. De Forest's writings, Winslow Homer's illustrations, and Alexander Gardner's photographs soon disappeared.Less
The Civil War was a pivotal event in American political and social history. However, it also served as the hinge in the nation's cultural development, a turning point after which intellectual life and artistic expression were perceptibly different. Underneath the Civil War's romantic veneer lurked grim realities. Gender roles especially felt the conflict's transforming impact. Most of America's promising young writers and artists did not participate in the Civil War. The war reinforced Oliver Wendell Holmes, Jr.'s developed skeptical materialism. Walt Whitman had urged “relentless war” to end secession, but he, too, changed his exuberant tone after witnessing the war's grim reaping. The war's “mortal reality” gave greater depth, poignancy, and clarity to Whitman's Drum-Taps. Over the years Romanticism formed around the Civil War, making it stirringly unreal. The soul-numbing war depicted in John Esten Cooke and John W. De Forest's writings, Winslow Homer's illustrations, and Alexander Gardner's photographs soon disappeared.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0012
- Subject:
- Political Science, American Politics
This concluding chapter examines the postbellum rise of the philosophical school of Pragmatism, promoted in large part by Oliver Wendell Holmes. The author argues for Pragmatism as a response to the ...
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This concluding chapter examines the postbellum rise of the philosophical school of Pragmatism, promoted in large part by Oliver Wendell Holmes. The author argues for Pragmatism as a response to the ideological extremes that spawned the Civil War, but asserts that neither path adequately describes the U.S. today. Rather, our nationhood rests in the tension between these two opposing ideals.Less
This concluding chapter examines the postbellum rise of the philosophical school of Pragmatism, promoted in large part by Oliver Wendell Holmes. The author argues for Pragmatism as a response to the ideological extremes that spawned the Civil War, but asserts that neither path adequately describes the U.S. today. Rather, our nationhood rests in the tension between these two opposing ideals.
Lisi Schoenbach
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780195389845
- eISBN:
- 9780199918393
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195389845.003.0005
- Subject:
- Literature, 20th-century Literature and Modernism
Chapter Four claims that James’s remarkably subtle and nuanced registry of emotions and personal interactions-long taken to indicate an apolitical aestheticism-should be linked directly to his ...
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Chapter Four claims that James’s remarkably subtle and nuanced registry of emotions and personal interactions-long taken to indicate an apolitical aestheticism-should be linked directly to his engagement with pressing political and social questions. These include the ongoing debate about “bigness” which preoccupied many of the leading intellectuals of his day, including his brother, William James. Despite its idiosyncratic and intensely personal aspect, The American Scene provides an acute theoretical analysis of the limitations and challenges of democratic institutions, and even offers a coherent and distinctive theory of the State.Less
Chapter Four claims that James’s remarkably subtle and nuanced registry of emotions and personal interactions-long taken to indicate an apolitical aestheticism-should be linked directly to his engagement with pressing political and social questions. These include the ongoing debate about “bigness” which preoccupied many of the leading intellectuals of his day, including his brother, William James. Despite its idiosyncratic and intensely personal aspect, The American Scene provides an acute theoretical analysis of the limitations and challenges of democratic institutions, and even offers a coherent and distinctive theory of the State.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804756594
- eISBN:
- 9780804787529
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804756594.003.0002
- Subject:
- Law, Philosophy of Law
This chapter deals with the realist conception of history, especially in the development of legal doctrine. It begins with a discussion on the historical work of Oliver Wendell Holmes and his ...
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This chapter deals with the realist conception of history, especially in the development of legal doctrine. It begins with a discussion on the historical work of Oliver Wendell Holmes and his conception of legal history. It presents a comparison between Oliver Wendell Holmes and Herbert Spencer, to get a sense of Darwinism in late nineteenth- and early twentieth-century American social thought. The chapter concludes with actual examples of realist legal history and a brief introduction of contemporary meme theory.Less
This chapter deals with the realist conception of history, especially in the development of legal doctrine. It begins with a discussion on the historical work of Oliver Wendell Holmes and his conception of legal history. It presents a comparison between Oliver Wendell Holmes and Herbert Spencer, to get a sense of Darwinism in late nineteenth- and early twentieth-century American social thought. The chapter concludes with actual examples of realist legal history and a brief introduction of contemporary meme theory.
MICHAEL TAGGART
- Published in print:
- 2002
- Published Online:
- January 2010
- ISBN:
- 9780199256877
- eISBN:
- 9780191719646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199256877.003.0008
- Subject:
- Law, Human Rights and Immigration, Legal History
For a 20-year period spanning the turn of the 20th century, the place of malice in the law of torts was a matter of considerable legal interest. For England, the debate began with the pioneering work ...
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For a 20-year period spanning the turn of the 20th century, the place of malice in the law of torts was a matter of considerable legal interest. For England, the debate began with the pioneering work of Sir Frederick Pollock on The Law of Torts, first published in 1887. For the American side, the first shot was fired in the Harvard Law Review by Oliver Wendell Holmes Jr., the doyen of American lawyers. The American law, however, was less settled than Pollock led his readers to believe. This chapter also discusses economic torts and nuisance.Less
For a 20-year period spanning the turn of the 20th century, the place of malice in the law of torts was a matter of considerable legal interest. For England, the debate began with the pioneering work of Sir Frederick Pollock on The Law of Torts, first published in 1887. For the American side, the first shot was fired in the Harvard Law Review by Oliver Wendell Holmes Jr., the doyen of American lawyers. The American law, however, was less settled than Pollock led his readers to believe. This chapter also discusses economic torts and nuisance.
David E. Shi
- Published in print:
- 1996
- Published Online:
- October 2011
- ISBN:
- 9780195106534
- eISBN:
- 9780199854097
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195106534.001.0001
- Subject:
- History, History of Ideas
This book provides a history of the rise of realism in American culture. It captures the character and sweep of this all-encompassing movement—ranging from Winslow Homer to the rise of the Ash Can ...
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This book provides a history of the rise of realism in American culture. It captures the character and sweep of this all-encompassing movement—ranging from Winslow Homer to the rise of the Ash Can school, from Whitman to Henry James to Theodore Dreiser. It begins with a look at the idealist atmosphere of the antebellum years, when otherwordly themes are considered the only fit subject for art. Whitman's assault on these standards coincided with sweeping changes in American society: the bloody Civil War, the aggressive advance of a modern scientific spirit, the popularity of photography, the expansion of cities, capitalism, and the middle class—all worked to shake the foundations of genteel idealism and sentimental romanticism. Both artists and the public developed an ever-expanding appetite for hard facts, and for art that accurately depicted them. As the book proceeds through the 19th century, it traces the realist revolution in each major area of arts and letters, combining an analysis of the movement's essential themes with incisive portraits of its leading practitioners. Here we see Oliver Wendell Holmes, Jr., shaken to stern realism by the horrors of the Civil War; the influence of Walt Whitman on painter Thomas Eakins and architect Louis Sullivan, a leader of the Chicago school; the local-color verisimilitude of Louisa May Alcott and Sarah Orne Jewett; and the impact of urban squalor on intrepid young writers such as Stephen Crane.Less
This book provides a history of the rise of realism in American culture. It captures the character and sweep of this all-encompassing movement—ranging from Winslow Homer to the rise of the Ash Can school, from Whitman to Henry James to Theodore Dreiser. It begins with a look at the idealist atmosphere of the antebellum years, when otherwordly themes are considered the only fit subject for art. Whitman's assault on these standards coincided with sweeping changes in American society: the bloody Civil War, the aggressive advance of a modern scientific spirit, the popularity of photography, the expansion of cities, capitalism, and the middle class—all worked to shake the foundations of genteel idealism and sentimental romanticism. Both artists and the public developed an ever-expanding appetite for hard facts, and for art that accurately depicted them. As the book proceeds through the 19th century, it traces the realist revolution in each major area of arts and letters, combining an analysis of the movement's essential themes with incisive portraits of its leading practitioners. Here we see Oliver Wendell Holmes, Jr., shaken to stern realism by the horrors of the Civil War; the influence of Walt Whitman on painter Thomas Eakins and architect Louis Sullivan, a leader of the Chicago school; the local-color verisimilitude of Louisa May Alcott and Sarah Orne Jewett; and the impact of urban squalor on intrepid young writers such as Stephen Crane.
Frederic R. Kellogg
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226523903
- eISBN:
- 9780226524061
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226524061.001.0001
- Subject:
- Law, Legal History
This is a study of Justice Oliver Wendell Holmes Jr.’s original contribution to both legal logic and general logical theory. Conventional legal logic has focused on the operation of judges deciding ...
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This is a study of Justice Oliver Wendell Holmes Jr.’s original contribution to both legal logic and general logical theory. Conventional legal logic has focused on the operation of judges deciding the immediate case. Holmes (from analogies with natural science) came to understand law as an extended process of inquiry into recurring problems. The role of the legal profession is thereby recast by Holmes to recognize the importance of input from outside the law—the importance of the social dimension of legal and logical induction. Lawyers and judges perform an important but often largely ancillary role, one that must nevertheless be evaluated from the standpoint of a logical method prioritizing experience over general propositions. Addressing the nature of the difficult case, Holmes emphasized an aspect of uncertainty distinct from that commonly envisioned for the deciding judge. Rather than unclarity or contradiction within the settled law, or vagueness in the meaning or application of an applicable rule, Holmes focused instead on the relation of a novel or unanticipated fact to an underlying and emergent social problem. The appearance of legal uncertainty, where opinions and authorities are sharply divided in a controversial case, signals the early stage of a broader social continuum of inquiry. It is not then strictly a legal uncertainty, and it is a mistake to expect that judges alone can immediately resolve the larger problem.Less
This is a study of Justice Oliver Wendell Holmes Jr.’s original contribution to both legal logic and general logical theory. Conventional legal logic has focused on the operation of judges deciding the immediate case. Holmes (from analogies with natural science) came to understand law as an extended process of inquiry into recurring problems. The role of the legal profession is thereby recast by Holmes to recognize the importance of input from outside the law—the importance of the social dimension of legal and logical induction. Lawyers and judges perform an important but often largely ancillary role, one that must nevertheless be evaluated from the standpoint of a logical method prioritizing experience over general propositions. Addressing the nature of the difficult case, Holmes emphasized an aspect of uncertainty distinct from that commonly envisioned for the deciding judge. Rather than unclarity or contradiction within the settled law, or vagueness in the meaning or application of an applicable rule, Holmes focused instead on the relation of a novel or unanticipated fact to an underlying and emergent social problem. The appearance of legal uncertainty, where opinions and authorities are sharply divided in a controversial case, signals the early stage of a broader social continuum of inquiry. It is not then strictly a legal uncertainty, and it is a mistake to expect that judges alone can immediately resolve the larger problem.
Karen Petroski
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226445021
- eISBN:
- 9780226445168
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226445168.003.0005
- Subject:
- Law, Constitutional and Administrative Law
The puzzle this chapter addresses concerns a passage from Oliver Wendell Holmes’s well-known essay “The Theory of Legal Interpretation.” Judges following Holmes have used this essay as a kind of ...
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The puzzle this chapter addresses concerns a passage from Oliver Wendell Holmes’s well-known essay “The Theory of Legal Interpretation.” Judges following Holmes have used this essay as a kind of multi-purpose tool. Their opinions have cited the essay to support different interpretive conclusions and apparently contrasting theoretical commitments. And yet one of the most frequently cited passages in the essay refers repeatedly to a figure about which neither judges nor scholars have had much to say: the figure Holmes calls the “normal speaker of English.” Although judges sometimes mention this figure, they invoke it only about a third as often as they quote other passages from the essay or simply cite the entire essay. This neglect is odd because Holmes explicitly likens the “normal speaker of English” to another legal figure that has received a great deal of scrutiny: the reasonable person (or as Holmes calls it, the “prudent man”). Thus the puzzle: Why have judges and commentators paid so little direct attention to the figure of the normal speaker of English, given the evident attractions of Holmes’s essay as a resource for justification and analysis, and given the analogy Holmes drew between the normal speaker and the reasonable person?Less
The puzzle this chapter addresses concerns a passage from Oliver Wendell Holmes’s well-known essay “The Theory of Legal Interpretation.” Judges following Holmes have used this essay as a kind of multi-purpose tool. Their opinions have cited the essay to support different interpretive conclusions and apparently contrasting theoretical commitments. And yet one of the most frequently cited passages in the essay refers repeatedly to a figure about which neither judges nor scholars have had much to say: the figure Holmes calls the “normal speaker of English.” Although judges sometimes mention this figure, they invoke it only about a third as often as they quote other passages from the essay or simply cite the entire essay. This neglect is odd because Holmes explicitly likens the “normal speaker of English” to another legal figure that has received a great deal of scrutiny: the reasonable person (or as Holmes calls it, the “prudent man”). Thus the puzzle: Why have judges and commentators paid so little direct attention to the figure of the normal speaker of English, given the evident attractions of Holmes’s essay as a resource for justification and analysis, and given the analogy Holmes drew between the normal speaker and the reasonable person?
Imer B. Flores
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675517
- eISBN:
- 9780191757280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675517.003.0006
- Subject:
- Law, Philosophy of Law
This chapter reflects on the nature of law from a contemporary perspective. It addresses questions such as: Does law have a nature or even an essence? Can it be defined or explained? If so, which and ...
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This chapter reflects on the nature of law from a contemporary perspective. It addresses questions such as: Does law have a nature or even an essence? Can it be defined or explained? If so, which and of what type are the characteristics that define or explain it? The chapter is organized as follows. Section II argues that an exclusive focus on purportedly sufficient and/or necessary features or properties of law leads to a false or impoverished picture of its nature. We should instead, direct our attention to features or properties that represent non-necessary but nevertheless important or valuable aspects of the phenomenon we seek to understand. Section III considers the views of Oliver Wendell Holmes Jr., who successfully integrated both logic and experience into law, along with a pluralistic methodological approach to legal rationality. Section IV sketches an analysis of the concept of legal rationality by pointing to the different levels, spheres, or types of legal rationality. Finally, Section V presents a general, very tentative conclusion regarding the nature of law vis-à-vis legal rationality.Less
This chapter reflects on the nature of law from a contemporary perspective. It addresses questions such as: Does law have a nature or even an essence? Can it be defined or explained? If so, which and of what type are the characteristics that define or explain it? The chapter is organized as follows. Section II argues that an exclusive focus on purportedly sufficient and/or necessary features or properties of law leads to a false or impoverished picture of its nature. We should instead, direct our attention to features or properties that represent non-necessary but nevertheless important or valuable aspects of the phenomenon we seek to understand. Section III considers the views of Oliver Wendell Holmes Jr., who successfully integrated both logic and experience into law, along with a pluralistic methodological approach to legal rationality. Section IV sketches an analysis of the concept of legal rationality by pointing to the different levels, spheres, or types of legal rationality. Finally, Section V presents a general, very tentative conclusion regarding the nature of law vis-à-vis legal rationality.
- Published in print:
- 2003
- Published Online:
- March 2013
- ISBN:
- 9780226094823
- eISBN:
- 9780226094830
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226094830.003.0011
- Subject:
- Political Science, Political Theory
This chapter discusses the writings and judicial views of Oliver Wendell Holmes Jr. and the extraordinary influence he achieved in twentieth-century legal discourse that originated in part from the ...
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This chapter discusses the writings and judicial views of Oliver Wendell Holmes Jr. and the extraordinary influence he achieved in twentieth-century legal discourse that originated in part from the efforts by Montesquieu and Blackstone to moderate law by splitting judicial procedure from jurisprudential essence. A clear concept of judicial legislating yielded by Holmes's uncertainty about any fixed legal principle was intended to achieve a new social and legal order, one more adjusted to either current majority will or to be an evolutionary progress of the species. Holmes avoided Montesquieu's constitutionalism while appreciating other ends or aims of his philosophy, generally viewing it as a cosmopolitan, historicist humanism that survived its outdated efforts as a science of politics. The Holmesean realism is criticized as being provided by both Montesquieuan jurisprudence and the classic common-law spirit because it poses severe obstacles that perpetuate the rule of law in a sound constitutional order.Less
This chapter discusses the writings and judicial views of Oliver Wendell Holmes Jr. and the extraordinary influence he achieved in twentieth-century legal discourse that originated in part from the efforts by Montesquieu and Blackstone to moderate law by splitting judicial procedure from jurisprudential essence. A clear concept of judicial legislating yielded by Holmes's uncertainty about any fixed legal principle was intended to achieve a new social and legal order, one more adjusted to either current majority will or to be an evolutionary progress of the species. Holmes avoided Montesquieu's constitutionalism while appreciating other ends or aims of his philosophy, generally viewing it as a cosmopolitan, historicist humanism that survived its outdated efforts as a science of politics. The Holmesean realism is criticized as being provided by both Montesquieuan jurisprudence and the classic common-law spirit because it poses severe obstacles that perpetuate the rule of law in a sound constitutional order.
Ray Zone
- Published in print:
- 2007
- Published Online:
- September 2011
- ISBN:
- 9780813124612
- eISBN:
- 9780813134796
- Item type:
- chapter
- Publisher:
- University Press of Kentucky
- DOI:
- 10.5810/kentucky/9780813124612.003.0002
- Subject:
- Film, Television and Radio, Film
This chapter discusses the beginning of stereography in motion pictures. It all began when Charles Wheatstone created a device in 1830 that was called the “reflecting mirror stereoscope”. Sir David ...
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This chapter discusses the beginning of stereography in motion pictures. It all began when Charles Wheatstone created a device in 1830 that was called the “reflecting mirror stereoscope”. Sir David Brewster, aside from inventing the kaleidoscope in 1816, made significant contributions to stereography and began making compact stereoscopes with magnifying lenses in 1844. Another important person to the origins of stereography was Oliver Wendell Holmes, who was the first person to use the word “stereograph”.Less
This chapter discusses the beginning of stereography in motion pictures. It all began when Charles Wheatstone created a device in 1830 that was called the “reflecting mirror stereoscope”. Sir David Brewster, aside from inventing the kaleidoscope in 1816, made significant contributions to stereography and began making compact stereoscopes with magnifying lenses in 1844. Another important person to the origins of stereography was Oliver Wendell Holmes, who was the first person to use the word “stereograph”.
Joel Porte
- Published in print:
- 2004
- Published Online:
- October 2013
- ISBN:
- 9780300104462
- eISBN:
- 9780300130577
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300104462.003.0007
- Subject:
- Literature, American, 19th Century Literature
This chapter examines Oliver Wendell Holmes' biography on Ralph Waldo Emerson in the American Men of Letters series. It suggests that Holmes' work seemed odd being an outspoken critic of ...
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This chapter examines Oliver Wendell Holmes' biography on Ralph Waldo Emerson in the American Men of Letters series. It suggests that Holmes' work seemed odd being an outspoken critic of Transcendentalism. It explains that Holmes' Emerson was less a mystic than a poet with a penchant for dabbling in the occult and was characterized by “a dash of science, a flash of imagination, and a hint of . . . delicate wit.” This chapter also contends that the writing of the biography provided Holmes with a unique opportunity to examine the cultural history of his own time and tribe.Less
This chapter examines Oliver Wendell Holmes' biography on Ralph Waldo Emerson in the American Men of Letters series. It suggests that Holmes' work seemed odd being an outspoken critic of Transcendentalism. It explains that Holmes' Emerson was less a mystic than a poet with a penchant for dabbling in the occult and was characterized by “a dash of science, a flash of imagination, and a hint of . . . delicate wit.” This chapter also contends that the writing of the biography provided Holmes with a unique opportunity to examine the cultural history of his own time and tribe.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804745789
- eISBN:
- 9780804763271
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804745789.003.0009
- Subject:
- Law, Intellectual Property, IT, and Media Law
Two opinions by Justice Oliver Wendell Holmes, Jr., filed in the series of Espionage Act cases which the Supreme Court decided in 1919—his opinion for the Court in Schenck v. United States and his ...
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Two opinions by Justice Oliver Wendell Holmes, Jr., filed in the series of Espionage Act cases which the Supreme Court decided in 1919—his opinion for the Court in Schenck v. United States and his dissent in Abrams v. United States—raised the curtain on serious consideration of the First Amendment. Holmes's opinions remain paradigmatic examples of the sort of reasoning presupposed in modern First Amendment law. This chapter examines what the foundations of that law ignore, and with what is simply presupposed away, without attention or concern, in that tradition of legal argument.Less
Two opinions by Justice Oliver Wendell Holmes, Jr., filed in the series of Espionage Act cases which the Supreme Court decided in 1919—his opinion for the Court in Schenck v. United States and his dissent in Abrams v. United States—raised the curtain on serious consideration of the First Amendment. Holmes's opinions remain paradigmatic examples of the sort of reasoning presupposed in modern First Amendment law. This chapter examines what the foundations of that law ignore, and with what is simply presupposed away, without attention or concern, in that tradition of legal argument.
Nathaniel Grow
- Published in print:
- 2014
- Published Online:
- April 2017
- ISBN:
- 9780252038198
- eISBN:
- 9780252095993
- Item type:
- chapter
- Publisher:
- University of Illinois Press
- DOI:
- 10.5406/illinois/9780252038198.003.0010
- Subject:
- Sociology, Sport and Leisure
This chapter examines organized baseball's appeal following its loss in the Baltimore case as well as the Supreme Court's final decision, a period spanning May 1919 to October 1922. After Justice ...
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This chapter examines organized baseball's appeal following its loss in the Baltimore case as well as the Supreme Court's final decision, a period spanning May 1919 to October 1922. After Justice Wendell Phillips Stafford issued his verdict, organized baseball's attorneys began preparing the appeal. The defendants identified a total of thirty-five alleged legal errors committed by Stafford during the trial, ranging from various evidentiary rulings to the court's determination of the interstate commerce issue and its instructions to the jury. Meanwhile, George Pepper was preparing the brief that organized baseball would present to the Court of Appeals for the District of Columbia. The Baltimore Federals filed its own brief on September 15, 1920. This chapter first considers the Supreme Court proceedings in Federal Baseball Club of Baltimore, Inc. v. National League as well as its decision-making process before discussing Justice Oliver Wendell Holmes Jr.'s ruling in favor of organized baseball. It also cites the Supreme Court's rejection of Baltimore's request for a rehearing.Less
This chapter examines organized baseball's appeal following its loss in the Baltimore case as well as the Supreme Court's final decision, a period spanning May 1919 to October 1922. After Justice Wendell Phillips Stafford issued his verdict, organized baseball's attorneys began preparing the appeal. The defendants identified a total of thirty-five alleged legal errors committed by Stafford during the trial, ranging from various evidentiary rulings to the court's determination of the interstate commerce issue and its instructions to the jury. Meanwhile, George Pepper was preparing the brief that organized baseball would present to the Court of Appeals for the District of Columbia. The Baltimore Federals filed its own brief on September 15, 1920. This chapter first considers the Supreme Court proceedings in Federal Baseball Club of Baltimore, Inc. v. National League as well as its decision-making process before discussing Justice Oliver Wendell Holmes Jr.'s ruling in favor of organized baseball. It also cites the Supreme Court's rejection of Baltimore's request for a rehearing.
Nathaniel Grow
- Published in print:
- 2014
- Published Online:
- April 2017
- ISBN:
- 9780252038198
- eISBN:
- 9780252095993
- Item type:
- chapter
- Publisher:
- University of Illinois Press
- DOI:
- 10.5406/illinois/9780252038198.003.0001
- Subject:
- Sociology, Sport and Leisure
This book examines the history of the Federal Baseball litigation and explains how Major League Baseball first came to be exempt from antitrust law. In a unanimous ruling, penned by Justice Oliver ...
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This book examines the history of the Federal Baseball litigation and explains how Major League Baseball first came to be exempt from antitrust law. In a unanimous ruling, penned by Justice Oliver Wendell Holmes Jr., in the 1922 case of Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, the United States Supreme Court held that the “business of base ball” was not subject to the Sherman Antitrust Act because it did not constitute interstate commerce. The Court has affirmed Federal Baseball on two separate occasions, first in 1953 and then again in 1972, giving Major League Baseball antitrust immunity. This book examines how baseball came to enjoy its unique antitrust status, and more specifically why Justice Holmes concluded that the sport was not interstate commerce and thus not subject to federal antitrust law. It argues that the decision was consistent with the prevailing judicial precedents of the day and highlights several critical tactical mistakes committed by the Baltimore Federals's counsel throughout the litigation.Less
This book examines the history of the Federal Baseball litigation and explains how Major League Baseball first came to be exempt from antitrust law. In a unanimous ruling, penned by Justice Oliver Wendell Holmes Jr., in the 1922 case of Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, the United States Supreme Court held that the “business of base ball” was not subject to the Sherman Antitrust Act because it did not constitute interstate commerce. The Court has affirmed Federal Baseball on two separate occasions, first in 1953 and then again in 1972, giving Major League Baseball antitrust immunity. This book examines how baseball came to enjoy its unique antitrust status, and more specifically why Justice Holmes concluded that the sport was not interstate commerce and thus not subject to federal antitrust law. It argues that the decision was consistent with the prevailing judicial precedents of the day and highlights several critical tactical mistakes committed by the Baltimore Federals's counsel throughout the litigation.
Paul O. Carrese
- Published in print:
- 2003
- Published Online:
- March 2013
- ISBN:
- 9780226094823
- eISBN:
- 9780226094830
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226094830.001.0001
- Subject:
- Political Science, Political Theory
This book provides a provocative and original analysis of the intellectual sources of today's powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new ...
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This book provides a provocative and original analysis of the intellectual sources of today's powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new conception of the separation of powers and of strong but subtle courts. Montesquieu instructed statesmen and judges to “cloak power” by placing the robed power at the center of politics, while concealing judges behind citizen juries and subtle reforms. Tracing Montesquieu's conception of judicial power through Blackstone, Hamilton, and Tocqueville, the book shows how it led to the prominence of judges, courts, and lawyers in America today. But it places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution—which it is argued is the source of the now-prevalent view that judging is merely political. To address this crisis, the book argues for a rediscovery of an independent judiciary-one that blends prudence and natural law with common law and that observes the moderate jurisprudence of Montesquieu and Blackstone, balancing abstract principles with realistic views of human nature and institutions. It also advocates for a return to the complex constitutionalism of the American founders and Tocqueville and for judges who understand their responsibility to elevate citizens above individualism, instructing them in law and right. Such judicial statesmanship, moderating democracy's excesses, the book explains, differs from an activism that favors isolated individuals and progressive policies over civic duties, communal principles, and constitutional tradition.Less
This book provides a provocative and original analysis of the intellectual sources of today's powerful judiciary, arguing that Montesquieu, in his Spirit of the Laws, first articulated a new conception of the separation of powers and of strong but subtle courts. Montesquieu instructed statesmen and judges to “cloak power” by placing the robed power at the center of politics, while concealing judges behind citizen juries and subtle reforms. Tracing Montesquieu's conception of judicial power through Blackstone, Hamilton, and Tocqueville, the book shows how it led to the prominence of judges, courts, and lawyers in America today. But it places the blame for contemporary judicial activism squarely at the feet of Oliver Wendell Holmes Jr. and his jurisprudential revolution—which it is argued is the source of the now-prevalent view that judging is merely political. To address this crisis, the book argues for a rediscovery of an independent judiciary-one that blends prudence and natural law with common law and that observes the moderate jurisprudence of Montesquieu and Blackstone, balancing abstract principles with realistic views of human nature and institutions. It also advocates for a return to the complex constitutionalism of the American founders and Tocqueville and for judges who understand their responsibility to elevate citizens above individualism, instructing them in law and right. Such judicial statesmanship, moderating democracy's excesses, the book explains, differs from an activism that favors isolated individuals and progressive policies over civic duties, communal principles, and constitutional tradition.
Brian E. Butler
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226474502
- eISBN:
- 9780226474649
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226474649.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from ...
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This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.Less
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804757249
- eISBN:
- 9780804779609
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804757249.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter focuses on two concepts that figure most prominently in the constitution of electoral speech law: “electoral superintendence” and the “marketplace of ideas.” It shows that “electoral ...
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This chapter focuses on two concepts that figure most prominently in the constitution of electoral speech law: “electoral superintendence” and the “marketplace of ideas.” It shows that “electoral superintendence” represents the general supervisory capacity the U.S. Supreme Court has assumed in electoral process cases since about World War II, while the concept of a “marketplace of ideas” has developed from Justice Oliver Wendell Holmes's famous contemplation of the potential for “free trade in ideas” to serve as the vehicle for evaluating competing claims and ultimately realizing the social good in the realm of expression. The chapter begins with an exploration of the essence and evolution of “superintendence,” as this notion encapsulates the Court's involvement in the organization of American politics.Less
This chapter focuses on two concepts that figure most prominently in the constitution of electoral speech law: “electoral superintendence” and the “marketplace of ideas.” It shows that “electoral superintendence” represents the general supervisory capacity the U.S. Supreme Court has assumed in electoral process cases since about World War II, while the concept of a “marketplace of ideas” has developed from Justice Oliver Wendell Holmes's famous contemplation of the potential for “free trade in ideas” to serve as the vehicle for evaluating competing claims and ultimately realizing the social good in the realm of expression. The chapter begins with an exploration of the essence and evolution of “superintendence,” as this notion encapsulates the Court's involvement in the organization of American politics.
Rodney A. Smolla
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814741030
- eISBN:
- 9780814788561
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814741030.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the ...
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This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.Less
This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.
