Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon

Aesthetic Dissent and the Common Law

Allen Mendenhall

This book argues that Oliver Wendell Holmes Jr., helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

University Press Copublishing Division / Bucknell University Press

Pages: 202 • Trim: 6⅜ x 9⅜

978-1-61148-791-6 • Hardback • December 2016 • $98.00 • (£75.00)

978-1-61148-793-0 • Paperback • June 2018 • $53.99 • (£42.00)

Subjects: Literary Criticism / Semiotics & Theory, Law / Legal Writing, Literary Criticism / American / General

Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon

Aesthetic Dissent and the Common Law

Hardback

Paperback

Summary

This book argues that Oliver Wendell Holmes Jr., helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

Details

University Press Copublishing Division / Bucknell University Press

Pages: 202 • Trim: 6⅜ x 9⅜

978-1-61148-791-6 • Hardback • December 2016 • $98.00 • (£75.00)

978-1-61148-793-0 • Paperback • June 2018 • $53.99 • (£42.00)

Subjects: Literary Criticism / Semiotics & Theory, Law / Legal Writing, Literary Criticism / American / General

Author

Allen Mendenhall is associate dean and executive director of the Blackstone & Burke Center for Law & Liberty at Faulkner University Thomas Goode Jones School of Law.

Table of Contents

Preface
Acknowledgments
Introduction
Chapter One
Chapter Two
Chapter Three
Chapter Four
Bibliography
About the Author
Endnotes

Reviews

This excellent book by Professor Mendenhall explains convincingly that we owe legal pragmatism mainly to the great judicial philosopher and Supreme Court Justice Oliver Wendell Holmes, though his debts to the great philosophers of his era—Ralph Waldo Emerson, Charles Sanders Peirce, William James, and John Dewey—were as great as our debts are to Holmes. Pragmatic adjudication emphasizes the consequences of judicial decisions, not only or even mainly the consequences for the litigants and their lawyers and judicial reputations but the consequences for society of decisions that establish or confirm or modify rules of conduct by persons, firms and other private agencies or associations, and government. Thus, as Mendenhall explains, in Holmes's philosophy of law, "Courts were not designed to referee or legislate moral tendencies but to ensure that the consequences of human action are reasonable and practicable in the workaday social sphere." Holmes learned from the great philosophers and has bequeathed to us the need to strip the philosophy of law of its abstract or dogmatic moralizing and to avoid attenuated lines of thinking that do not comport with commonsense empiricism. It's unfortunate that few modern judges think about judicial lawmaking in these classical terms.
— Richard A. Posner, Judge, United States Court of Appeals for the Seventh Circuit and Senior Lecturer, University of Chicago Law School

Although intellectual boundary-crossing has become routine, this book is striking. . . . Through a novel, detailed literary approach to Holmes’s dissents, Mendenhall makes a compelling case for the jurist’s penchant for superfluity, obscurity, ambiguity, poetic sound effects, and poetic expression more generally.
— American Literary History

Mendenhall’s book is an original contribution to many fields, including constitutional theory, American pragmatism, and literary aesthetics. He convincingly illustrates that dissenting in Supreme Court cases provides the evolutionary Common Law, especially when written in a poetic prose capturing Emersonian themes of superfluity, with material for its organic adaptation over time. Holmes illustrates this aesthetic dissent. His dedication to the craft evinces the pragmatism of the classical philosophers, Peirce, James, and Dewey, and is also in the service of preventing the bloodshed that Holmes experienced firsthand in the Civil War. The book is exceedingly well researched and written in prose that does not perform a contradiction to the aesthetics he highlights as most valuable.
— Seth Vannatta, professor and chair, Department of Philosophy and Religious Studies, Morgan State University

Oliver Wendell Holmes, Jr. is renowned for penning some of the most influential dissents in American constitutional history. That Holmes was a gifted wordsmith who infused his writing with a rhetorical flair is usually treated as a side note by legal historians. Finally, in Allen Mendenhall, we have a scholar who takes seriously the literary aesthetic of Holmes' dissents.
— Andrew Porwancher, Institute for the American Constitutional Heritage, University of Oklahoma

This excellent book by Professor Mendenhall explains convincingly that we owe legal pragmatism mainly to the great judicial philosopher and Supreme Court Justice Oliver Wendell Holmes, though his debts to the great philosophers of his era—Ralph Waldo Emerson, Charles Sanders Peirce, William James, and John Dewey—were as great as our debts are to Holmes. Pragmatic adjudication emphasizes the consequences of judicial decisions, not only or even mainly the consequences for the litigants and their lawyers and judicial reputations but the consequences for society of decisions that establish or confirm or modify rules of conduct by persons, firms and other private agencies or associations, and government. Thus, as Mendenhall explains, in Holmes's philosophy of law, "Courts were not designed to referee or legislate moral tendencies but to ensure that the consequences of human action are reasonable and practicable in the workaday social sphere." Holmes learned from the great philosophers and has bequeathed to us the need to strip the philosophy of law of its abstract or dogmatic moralizing and to avoid attenuated lines of thinking that do not comport with commonsense empiricism. It's unfortunate that few modern judges think about judicial lawmaking in these classical terms.
— Richard A. Posner, Judge, United States Court of Appeals for the Seventh Circuit and Senior Lecturer, University of Chicago Law School

Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon: Aesthetic Dissent and the Common Law is an enlightening...look at the dissents “as an aesthetic genre.”
— Law and Liberty Online

Oliver Wendell Holmes, Jr. is renowned for penning some of the most influential dissents in American constitutional history. That Holmes was a gifted wordsmith who infused his writing with a rhetorical flair is usually treated as a side note by legal historians. Finally, in Allen Mendenhall, we have a scholar who takes seriously the literary aesthetic of Holmes' dissents.
— Andrew Porwancher, Institute for the American Constitutional Heritage, University of Oklahoma

Allen's book joins my favorite figures—Ralph Waldo Emerson and Oliver Wendell Holmes. He argues that Holmes used Emerson's aesthetics in his dissents and thus introduced a sense that law evolved. I think Allen's book deserves a lot of attention and is super creative.... I certainly buy the idea that transcendentalism influenced law both before the Civil War and afterwards towards retesting old assumptions—and thus undermined a static vision of law. For me what is most salient about Holmes...was that history cast a long shadow over law and that history might also be used to critique law. Where the historical school of jurisprudence all too often said that history told us what was[,]...in Holmes' hands history also might undermine law. History could show us why we had arrived at one particular outcome, which might not actually be the one most fitted to the current stage in the United States. History moved from supporter of the status quo to underminer of it. Allen has opened my eyes that aesthetics had something to do with this, too.
— Alfred L. Brophy, University of North Carolina at Chapel Hill