Oliver Wendell Holmes, Jr., Legal Theory, and Judicial RestraintOliver 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
Section 1 | 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