Constitutional Law

The Emersonian Jurisprudence of Oliver Wendell Holmes

June 12, 2017 by Mark Pulliam

Legal scholars are endlessly fascinated by Oliver Wendell Holmes, Jr. (1841-1935). To some, he is “the great dissenter,” whose frequently quoted opinions were a harbinger of Legal Realism. Sympathetic biographers and playwrights have described him as the “Magnificent Yankee” and the “Yankee from Olympus.” To many libertarians, Holmes was an avatar of Progressivism, and the architect of the reviled notion of “judicial restraint.” Richard Posner celebrates Holmes, whom he regards as “the most illustrious figure in the history of American law,” as a pioneering legal pragmatist. Felix Frankfurter deemed him a “genius,” and Holmes’ 1881 book, The Common Law, has been called the greatest American law book ever written.

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