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Touched with Fire

David E. Shi

in Facing Facts: Realism in American Thought and Culture, 1850–1920

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 ... More

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

Law’s Practical Theory

Joseph P. Tomain

in Creon's Ghost: Law, Justice, and the Humanities

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 ... More

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

Neither Blue Nor Gray

George P. Fletcher

in Our Secret Constitution: How Lincoln Redefined American Democracy

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 ... More

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

Prediction Theories: “The Path of the Law,” The Wings of the Dove, and the Engagement with Temporality

Lisi Schoenbach

in Pragmatic 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 ... More

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

Malice and the Law of Torts

MICHAEL TAGGART

in Private Property and Abuse of Rights in Victorian England: The Story of Edward Pickles and the Bradford Water Supply

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 ... More

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

The Seeds of Time: Legal Realism and Legal History

in Legal Realism Regained: Saving Realism from Critical Acclaim

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 ... More

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

The Strange Fate of Holmes’s Normal Speaker of English

Karen Petroski

in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy

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 ... More

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

Epilogue

Gary W. Gallagher and T. Michael Parrish (eds)

in The War for the Common Soldier: How Men Thought, Fought, and Survived in Civil War Armies

The conclusion summarizes the argument about pragmatism through the military service of Oliver Wendell Holmes Jr. It also considers the degree to which the war wrought cultural change to the United ... More

The conclusion summarizes the argument about pragmatism through the military service of Oliver Wendell Holmes Jr. It also considers the degree to which the war wrought cultural change to the United States.Less

The Problem about the Nature of Law vis-à-vis Legal Rationality Revisited: Towards an Integrative Jurisprudence *

Imer B. Flores

in Philosophical Foundations of the Nature 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 ... More

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

: Holmes and Judicialized Liberalism

in The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism

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 ... More

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

Stereography Begins

Ray Zone

in Stereoscopic Cinema & the Origins of 3-D Film, 1838–1952

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 ... More

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

Holmes's Emerson

Joel Porte

in Consciousness and Culture: Emerson and Thoreau Reviewed

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 ... More

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

Justice Holmes and the Arrival of Balancing

in No Law: Intellectual Property in the Image of an Absolute First Amendment

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 ... More

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

The Appeal and Final Decision: May 1919 to October 1922

Nathaniel Grow

in Baseball on Trial: The Origin of Baseball's Antitrust Exemption

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 ... More

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

Introduction

Nathaniel Grow

in Baseball on Trial: The Origin of Baseball's Antitrust Exemption

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 ... More

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

Constituent Concepts

in The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

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 ... More

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