Oliver Wendell Holmes Jr., Pragmatism, And The Jurisprudence Of Agon: Aesthetic Dissent And The Common Law by Allen MendenhallOliver Wendell Holmes Jr., Pragmatism, And The Jurisprudence Of Agon: Aesthetic Dissent And The Common Law by Allen Mendenhall

Oliver Wendell Holmes Jr., Pragmatism, And The Jurisprudence Of Agon: Aesthetic Dissent And The…

byAllen Mendenhall

Hardcover | December 14, 2016

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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.
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.
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Title:Oliver Wendell Holmes Jr., Pragmatism, And The Jurisprudence Of Agon: Aesthetic Dissent And The…Format:HardcoverDimensions:202 pages, 9.31 × 6.36 × 0.72 inPublished:December 14, 2016Publisher:Bucknell University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:1611487919

ISBN - 13:9781611487916

Reviews

Table of Contents

Preface AcknowledgmentsIntroductionChapter OneChapter TwoChapter ThreeChapter FourBibliographyAbout the AuthorEndnotes

Editorial Reviews

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.