29 September 2015

Holmesian Legal Pragmatism

'Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.'s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey' by Allen Mendenhall in (2015) 48(1) The South Carolina Review 93 comments
Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey. 
Mendenhall concludes
It is difficult to imagine the emergence of legal pragmatism as a named discipline or a celebrated method apart from the contributions of Peirce, Dewey, or James. The jurisprudence of Benjamin Cardozo and Posner, among others, seems to have cobbled together its substance from these pragmatists who inspired Holmes. Nevertheless, Posner notes a difference between philosophical and legal pragmatism. Contra philosophical pragmatism, which Posner deems “orthodox” pragmatism, legal pragmatism focuses on the everyday. “Everyday pragmatists,” Posner clarifies, “tend to be ‘dry,’ no-nonsense types” (Posner, Law, Pragmatism, and Democracy 12). More often than formalist judges, judges who are pragmatic implement anti-foundational and precedent-based techniques to transform the useful or the convenient into the legal or operative. “An everyday-pragmatist judge,” Posner submits, “wants to know what is at stake in a practical sense in deciding a case one way or another. . . . [He] does not deny the standard rule-of-law virtues of generality, predictability, and impartiality, which generally favor a stand-pat approach to novel legal disputes. He just refuses to reify or sacralize those virtues. He dares to balance them against the adaptationist virtues of deciding the case at hand in a way that produces the best consequences for the parties and those similarly circumstanced” (Posner, Law, Pragmatism, and Democracy 12).
A pragmatist judge might therefore dissent on the grounds that the majority opinion abstracts into airy flourishes about “justice,” “rights,” and “equity.” Opinions that turn on such loaded terminology, the pragmatist judge might say, reveal more about judges’ personal ideologies than about the meaning of the terminology.
Legal pragmatism would seem to be, in this respect, both common sense and no-nonsense. Certainly that is how Holmes thought of the law. “[T]he only definition of law for a lawyer’s purpose,” the English jurist Sir Frederick Pollock wrote to Holmes, “is something which the Court will enforce” (Pollock to Holmes 3). Holmes agreed with his friend and pen pal. It was not that he considered the law to be without philosophical substance or that he delighted in its inevitable malleability; it was that he had it out for jurists who overstated the ontology of the law and glorified the law as the earthly manifestation of divine purpose or as a majestic surrogate for morality.
Law did not work this way; it was not divorced from the mundane social sphere or autonomous from ordinary, routine human interactions. Indeed, it derived from those things. Lawsuits with specific facts and murky issues came before the courts, which assessed the arguments of both sides and extracted a general rule based on the evidence and consistent with the principles expressed in patterns of established precedent. The actions of a few people were thereby plugged into a vast network of human relations spanning different times and places; what linked the people and places was the general rule, which had been in circulation long before the parties disputed. When they initiated suit, the parties did not know which general rule the judge would apply to their case, but their aim was to present the facts in such a way as to implicate the general rule that would allow them to prevail. In essence, the parties knew the facts of their case and had an assortment of general rules to choose from, and based on the precedents related to their claim, they predicted what the judge or jury would need to hear in order to find or rule in their favour. Legal pragmatism looks at this process and does not see anything ontologically or epistemologically magnificent. It looks at this process and sees, rather, a plain representation of the way things are and a possible prophecy about the way things might be.
As a link between the old and the new, Holmes appreciated the ways in which the law, like history itself, unfolds in stages and in accordance with community consensus. He had witnessed firsthand the stark cultural transitions in New England before, during, and after the Civil War, and he understood the importance of adjusting to change, or rather of accommodating it. He neither liked nor disliked the concept of change; he simply recognised that it was what it was and would happen despite anyone’s preferences for or against it.
That became his take on the law as well: it was neither good nor bad; it just was. Some people sought to remake it—they were supposed to be the legislators and their constituents — but whatever passed as law at any given moment was just a temporary place-marker until something different came along. This does not mean that he did not welcome certain changes, only that he did not see those changes as a step towards realizing an abstract teleology. When other justices or jurists seemed to champion an absolute or teleological position about the law, Holmes knew he had to dissent, and to dissent well, lest the law itself become fixed in a maladapted state from which it could not recover. By the time 1881 came to a close, Holmes had made his mark. The Common Law had been favorably received; it earned him the reputation of an accomplished jurisprudent and guaranteed his continued friendship with such renowned legal figures as Pollock. It also made him a discussion point among important political figures and public intellectuals.
1882 ushered in a new phase of his life. He began to adjust to the duties and responsibilities of life on the bench. His lifelong hero Emerson died that year, and as a novice justice on the highest court in Massachusetts, he was faced with rare opportunities to give Emersonian expression to pragmatic principles that would obtain to the people of that state.
Emerson’s ideas remained persuasive to Holmes and others inasmuch as they addressed theories that had not gone away. But Emerson’s language no longer conveyed the convictions of the age and no longer registered a perspective familiar to the younger generation. The country was asking questions, and the answers were not to be found in pure transcendentalism. Holmes realized this and so sought to repackage Emerson in idioms that the current era could recognize and through a medium that would have a direct impact on the problems concerning Americans. Eventually he would sit on the United States Supreme Court, and from that revered post he would begin to promulgate and preserve his lively variety of pragmatism — which synthesized Emerson, Peirce, Dewey, and James — in the legal canons of the country
Mendenhall'a 'Oliver Wendell Holmes Jr. and the Darwinian Common Law Paradigm' in (2015) 7(2) European Journal of Pragmatism and American Philosophy 129-151 is characterised as building on
recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be heavily debated. Holmes’s paradigm for the common law both revised and extended the models set forth by Sir Edward Coke, Thomas Hobbes, Sir Matthew Hale, and Sir William Blackstone. Adding additional substance to Haack’s argument by pointing out passages in Holmes’s opinions and in his only book, The Common Law, that corroborate her claims about the particular features of Holmes’s pragmatism, this essay concludes by suggesting that, because of his connections with the classical pragmatists and his reverence for Emerson, Holmes is the best place to begin answering the famous question formulated by Stanley Cavell: ‘What’s the Use in Calling Emerson a Pragmatist?’.
'Past Present' (University of Miami Legal Studies Research Paper No. 2015-14) by Patrick Gudridge is described as
the beginnings of a much more ambitious exploration of the Holmes opinion in Moore v. Dempsey and the question of what we might make of it. Moore, I want to argue, is an under-appreciated gateway, points to a notably profound and sober passage back and forth across a longer, accumulating run of pronouncements and possibilities within American constitutional law “writ large” (borrowing Larry Tribe’s apt phrase).
Moore addressed events in Phillips County, Arkansas, beginning in 1919 - the “Elaine Massacre,” white killings of African American tenant farmers and their families consequent to a union organizing effort, deaths (we now estimate) of maybe 243 African Americans and one to five white participants: perhaps the single bloodiest incident in “the war of race” that raged throughout the period after Reconstruction running well into the twentieth century. The Supreme Court’s ruling, as Holmes constructed it in his majority opinion in Moore, was in the end a plainly aggressive intervention in the Phillips County outrage, demanding federal district court full review of local murder prosecutions of African Americans, but as written it looks to be near to microscopically terse. Holmes of course is an uncertain, controversial, and difficult writer for us now. But the opinion taken as it is, I think, quite surprisingly opens up, travels back and forth across a wide “past” (further and wider than this draft shows), and an emphatic approach to constitutional law still available for use in what we think of as “present” (in more ways than this draft suggests).