Holmes a Hundred Years Ago- The Common Law and Legal Theory
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Holmes a Hundred Years Ago- The Common Law and Legal Theory
Hofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal Theoryworks at: http://scholarlycommons.law.hofstra.edu/hlr& Part of the Law CommonsRecommended CitationTouster, Saul (1982) 'Holmes a Hundred Years Ago: The Common Law and Legal Theory,' Hojitra Law Reritw. Vol. 10:1st. 3, Article 2.Available at: http:.'7scholartycommons.Iaw.hofstra.edu/hlr/vol 10/i«3/2T Holmes a Hundred Years Ago- The Common Law and Legal Theoryhis document it brought to you for free and open access by Scholarly Commons al Ho&tra Law. It has been accepted for inclusion in Hofstra Law Review bHolmes a Hundred Years Ago- The Common Law and Legal Theory
y an authorized administrator of Scholarly Commons at Hoiitra Law. For more information, pleas: contact lawdsiibohtnedu.Touster: Holmes a Hundred YearHofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal Theorylt around you a black gulf of solitude more isolating than that which surrounds the dying man, and in hope and in despair have trusted to your own unshaken will— then only will you have achieved.* 1Oliver Wendell Holmes, Jr.Already, people’s acquaintance with suffering had dropped off very much: and Holmes a Hundred Years Ago- The Common Law and Legal Theory as a consequence, that unlovely hardness, by which our times are so contrasted with those that immediately preceded them, had already set in, and incHolmes a Hundred Years Ago- The Common Law and Legal Theory
lined people to relish a ruthless theory.2Charles s. PeirceBy the time when, a few years ago, the portrait of Justice Oliver Wendell Holmes, Jr. was sHofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal Theoryine. As his nineteenth-century daguerrotype features, with white military handlebar mustache and piercing eyes, were effaced by the continuous rise in first-class postage rates, his reputation was suffering comparable erosion. Thus it• An abbreviated version of this article is appearing in The Ameri Holmes a Hundred Years Ago- The Common Law and Legal Theorycan Scholar.•• Joseph Proskauer Professor of Law and Social Welfare and Director of Legal Studies, Brandeis University. A.B., Harvard College; J.D., HHolmes a Hundred Years Ago- The Common Law and Legal Theory
arvard Law School. The author is currently at work on an interpretive biography of Justice Holmes.1O.W. Holmes, The Profession of the Law, in CollecteHofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal Theory960), quoted in p. Weiner, Evolution and the Founders OF Pragmatism 3 (1965).673Published by Scholarly Commons at Hofstra Law. 19821Hofstra Law Review, Vol. 10. Iss. 3 [1082]. Art. 2 674HOFSTRA LAW REVIEW(Vol. 10:673may come to great American heroes to be replaced at the rate of inflation. But one w Holmes a Hundred Years Ago- The Common Law and Legal Theoryould expect, in each case, that some group of specialists—in this instance, the academic lawyers—would, like a fan club or religious order, attempt toHolmes a Hundred Years Ago- The Common Law and Legal Theory
keep fresh and alive the reverence, taking every centennial opportunity to recall or restore the hero to his due place.For Holmes, the once towering Hofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal Theory of the law and its philosophy,”3 and the Freudian Jerome Frank, in an act of adoration perhaps unequalled in psychoanalytic annals, called “the completely adult jurist,”4 5 6 the years 1981 and 1982 provide centennial occasions for possible restoration. And they do so for the Holmes whose consummat Holmes a Hundred Years Ago- The Common Law and Legal Theorye style, as a writer of opinions, letters, and speeches, led Edmund Wilson in 1962—a point of recovery of a reputation already fast waning—to describeHolmes a Hundred Years Ago- The Common Law and Legal Theory
him as “perhaps the last Roman”8 in American history who alone survived the Civil War “to function as a first-rate intellect, to escape the democratiHofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal Theoryzation.7It was a hundred years ago, in 1881, that The Common Law,9 Holmes’ “masterpiece,” was published. The following year he was called to the bench. The quotation marks around the word masterpiece stand not for an uncertainty as to the reception of the work by public, bar or intellectual communit Holmes a Hundred Years Ago- The Common Law and Legal Theoryy—it was never quite received as such—but rather for the fact that his later influence and grandeur, as a judge on the United States Supreme Court (afHolmes a Hundred Years Ago- The Common Law and Legal Theory
ter serving twenty3Cardozo, Mr. Justice Holmes, 44 Harv. L. Rev. 682, 691 (1931). Cardozo’s article was reprinted as an introduction to a volume honorHofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal Theory30).5E. Wilson, Patriotic Gore 795 (1962).6Id. at 782.7We saw Holmes first in the Forties as an idealized Yankee from Olympus whose courage, originality, wit and wisdom so overshadowed that of his father—the poet, physician and man of letters, still remembered as the amiable Autocrat of the Breakfas Holmes a Hundred Years Ago- The Common Law and Legal Theoryt Table—that the six-foot, four-inch son appeared at least eight feet tall to his father’s five-foot five; and then in the Fifties as The MagnificentHolmes a Hundred Years Ago- The Common Law and Legal Theory
Yankee, on stage and celluloid, whose crisp, avuncular spirit, heroic survivor of one war, spoke to a generation that had just survived another. See cHofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional w Holmes a Hundred Years Ago- The Common Law and Legal TheoryYankee (1945), reprinted in The Best Plays of 1945-46, at 141 (B. Mantle ed. 1946).Hofstra Law ReviewVolume 10 I Issue 3Article 21982Holmes a Hundred Years Ago: Tire Common Law and Legal TheorySaul Tousterhollow this and additional wGọi ngay
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