Judicial Philosophy Of Oliver Wendell Holmes,JR.

Oliver Wendell Holmes was perhaps our most famous judge, and he is the great oracle of American legal thought,and his judicial philosophy is still influential in our law today, two-thirds of a century after he decided his last case. So how did he think judges should go about deciding cases? On this central question, I do not think his ideas and practices have been well understood.Holmes served as an appellate judge for almost fifty years, twenty on one of the most important state supreme courts in the country, and twenty-nine on the U.S. Supreme Court. He wrote well over two thousand opinions (has any American judge written more?), and, in the age before law clerk ghost writers, wrote every one of them himself, in his inimitable, often cryptic, style. There must have been few issues in the state or federal law of Holmes's judicial half-century that he did not rule on at least once.In addition, he left us a celebrated body of extrajudicial writings. Before he became a judge, he had written a classic of legal theory, The Common Law, which began with the mantra that the life of the law had not been logic but experience. Later, after he had been a judge for many years, Holmes looked at the law from the perspective of the Bad Man and came up with his famous prediction theory. And he left behind many other speeches and essays that touched on his ideas about judging. Finally, we have more than a century of commentary on his judicial performance and his jurisprudence, some of it by scholars who have simply tried to understand what he said, much of it by the creative movers of later legal thought, so many of whom have used Holmes as their springboard or their foil. The extensive paper trail he left behind is really no trail, but a confusing (if inviting) expanse of open territory. While it has been explored by many experienced travelers.Here is the text to be unfolded. All that is to come will be development and commentary.