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Full-Text Articles in Jurisprudence
Justice Holmes And Conservatism, Allen P. Mendenhall
Justice Holmes And Conservatism, Allen P. Mendenhall
Allen Mendenhall
Conservatives and libertarians have been harsh critics of Justice Holmes, but Holmes was not the progressive that these critics make him out to be. Holmes’s jurisprudence lends itself to conservative and libertarian jurisprudence, in particular in the areas of federalism and judicial restraint. Holmes disdained the politics of the young socialists who adored him, and Richard Posner goes so far as to cast Holmes as a free market capitalist. A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions. Holmes did not …
Holmes And Dissent, Allen P. Mendenhall
Holmes And Dissent, Allen P. Mendenhall
Allen Mendenhall
Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …