Preface
Acknowledgments
Introduction
Chapter One
Chapter Two
Chapter Three
Chapter Four
Bibliography
About the Author
Endnotes
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.
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*
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, associate professor, Department of Philosophy and
Religious Studies, Morgan State University*
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. 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*
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