Old Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes

Abstract

From the introduction:

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.