Justice Oliver Wendell Holmes aimed to systematize the law based on experience rather than logic.
Holmes questioned the development and interpretation of constitutional law, challenging judges' policy preferences.
Holmes' book, The Common Law, remains relevant in contemporary legal discussions, highlighting the role of the common law and the importance of protecting free speech.
Deep dives
The Common Law: A Book that Shaped America
The podcast explores the life and career of Oliver Wendell Holmes Jr. and his book, The Common Law. Holmes aimed to systematize the law and understand its development, realizing that the life of the law has been based on experience rather than logic. He discovered that legal rules were adopted for different reasons over time, balancing historical purpose with contemporary relevance. Holmes' famous quote, 'The life of the law has not been logic, it has been experience,' challenged the prevailing legal formalism of the time. The podcast discusses the significance of Holmes' ideas in shaping American law and his impact on legal realism and the law and economics movement.
Holmes' Perspective on the Constitution and Constitutional Law
The podcast examines Holmes' views on constitutional law and the Constitution itself. It highlights Holmes' belief that constitutional law was not well-developed at the time and that the Supreme Court's interpretation of the Constitution evolved over many decades. Holmes questioned whether judges were substituting their own policy preferences for those of the legislatures. The podcast also mentions the Library of Congress' list of 100 books that shaped America, including The Common Law, which contributed to the development of American jurisprudence. Holmes' approach to balancing history, tradition, and contemporary considerations in the law is considered influential but controversial.
The Relevance of The Common Law Today
The podcast emphasizes the continued relevance of Holmes' book, The Common Law, in contemporary legal discussions. It highlights the role of the common law in providing default rules when there are no specific federal regulations or international treaties in place. The concept of negligence is used as an example, illustrating how the common law establishes a general duty for individuals and businesses to take reasonable precautions to avoid foreseeable harms. The discussion also explores the importance of Holmes' opinions on free speech, particularly his endorsement of protecting speech that is disagreed with or even hated, emphasizing the role of free and open debate in determining the best ideas in the marketplace of ideas.
Holmes' Impact on Legal Philosophy and The Ongoing Debates
The podcast reflects on Holmes' contributions to legal philosophy and ongoing debates in the legal field. His pragmatic and deferential approach to interpreting the law, as well as his recognition of the societal and policy considerations in legal decision-making, resonate with current discussions on judicial philosophies. The podcast mentions the criticism of Holmes' endorsement of sterilization laws and questions whether Holmes' views on morality and law should be kept separate. It also highlights the complexity of Holmes' legacy, his support for deference to democratic legislators, his respect for precedent, and his openness to challenging and changing his own views based on new arguments and evidence.
Reconciliation of Holmes' Supreme Court service with his writings in the Common Law
Holmes' work on the Supreme Court generally aligned with the principles he outlined in the Common Law, although his jurisprudence was complex and couldn't be reduced to a bumper sticker slogan. Toward the end of his career, he referenced the Common Law in his opinions and emphasized its skepticism, humility, and consideration of pragmatic consequences. These two central influences, skepticism and attention to practical outcomes, connected his study of ancient lawmaking and his thoughts on constitutional interpretation.
Holmes' incitement test and its relevance to the internet age
The podcast episode delves into Holmes' incitement test, as articulated in the Abrams decision, which required speech to be both intended and likely to cause imminent violence in order for it to be restricted. The episode acknowledges the challenge of applying this test in the context of the internet, where speech can easily provoke widespread reactions and rapidly escalate. The episode raises questions about how to measure intent and determine the likelihood of violence in a virtual age. It also highlights the ongoing dilemma of interpreting constitutional principles in relation to technologies that the Framers didn't anticipate.
In this episode, Jeffrey Rosen, president and CEO of the National Constitution Center, talks with C-SPAN’s Peter Slen about the life and career of Justice Oliver Wendell Holmes, Jr. The conversation is part of C-SPAN’s Books That Shaped America series, which explores key works from American history that have had a major impact on society. This discussion features Holmes’ The Common Law, written in 1881. You can find all segments from the C-SPAN series at c-span.org/booksthatshapedamerica.
