Allen Porter Mendenhall

Archive for the ‘Jurisprudence’ Category

Remedies for Breach of Contract

In Advocacy, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, Philosophy on November 5, 2014 at 8:45 am

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A breach of contract occasions potential damages traditionally measured in the form of three remedies: “expectation,” “restitution,” or “reliance.” The goal of the expectation remedy, which is the most common measure of damages for a breach of contract and is popularly said to confer the “benefit of the bargain,” is to put the non-breaching party in as good of a position as he or she would have been in had the breaching party performed the contract.

When a breaching party has defectively performed a contract, for instance, the non-breaching party can recover the cost of remedying the defective performance, i.e., the cost of completion. In a breach of contract lawsuit for the delivery of personal property at a fixed time and place, the proper measure of damages is the contract price subtracted by the market price at the place and time of delivery. By comparison, the proper measure of damages for the failure to complete a construction contract is the cost of completion subtracted by the amount that remains unpaid under the contract.

Restitution remedies are designed to prevent “unjust enrichment.” They represent the interest of a non-breaching party in recovering the value that was conferred upon the breaching party through the effort to perform a contract. In other words, restitution seeks to restore what was lost to the non-breaching party or to make the non-breaching party whole again.

Reliance remedies, finally, aim to put the non-breaching party in as good a position as he or she was in before the promise or agreement was made. Whereas expectation damages are “forward-looking” and consider what position the non-breaching party would have been in had the contract been performed, reliance damages are “backward-looking” and consider what position the non-breaching party would have been in had the contract never been contemplated.

These are not the only remedies available when a breach of contract occurs, but they are the most widely recognized and commonly implemented of such remedies.

Causation and Criminal Law

In America, Criminal Law, Humanities, Jurisprudence, Justice, Law, Philosophy on October 29, 2014 at 8:45 am

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Actus reus, which is shorthand for the opening words in the Latin phrase actus non facit reum nisi mens sit rea (“an act does not make a person guilty unless his mind is also guilty”), is one element of a crime that a prosecutor must prove to establish criminal liability. A prosecutor must prove, in particular, that the defendant’s actus reus caused the harmful result at issue in the case. To do so, the prosecutor must show not only that the act was the “actual cause” of the harm (i.e., the “factual cause” or the “but for” cause”) but also that the act was the “proximate cause” of the harm (i.e., the “legal cause”).

The so-called “but for” test, also known as the sine qua non test, seeks to determine whether a particular act brought about the particular harm to the alleged victim. If the question whether the harm would not have happened but for the defendant’s action is answered in the affirmative, then causation is established; accordingly, if the harm would have happened notwithstanding the defendant’s act, then the defendant’s act is not a “cause in fact.” The “but for” test is not satisfied unless the prosecutor can show that the harm was foreseeable; if the harm was not foreseeable, then the defendant cannot be said to be the actual cause of the harm, only the proximate cause of the harm.

Determining causation is difficult when two people are performing different acts at different times, and each of their acts could have caused the harm at the time the harm occurred. The two acts by the two different people constitute concurrent sufficient causes under the “but for” test. Because there are two different people who could have “caused” the harm according to the “but for” test, yet only one of the two people actually caused the harm, the “but for” test fails to establish causation.

There are two tests that courts may apply when there are multiple sufficient causes under the facts. The first is the substantial factor test, according to which a defendant is criminally liable if his acts are shown to be a substantial factor leading to the harm to the alleged victim. This test is not commonly used because it can be arbitrary and subjective. The better test is a modified form of the “but for” test, formulated this way: “But for the defendant’s voluntary act, the harm would not have occurred not just when it did, but as it did.” Even this revised test falls short of ideal. For instance, it is not clear how this test is applied when two non-lethal acts combine to cause the death of one victim.

Regardless of which tests for causation obtain or prevail in a particular case, a prosecutor must establish each element of a crime beyond a reasonable doubt. That standard, at least, is a legal certainty.

The Felony-Murder Rule: Background and Justification

In American History, Britain, Criminal Law, History, Humanities, Jurisprudence, Justice, Law, Oliver Wendell Holmes Jr., Philosophy on October 8, 2014 at 8:45 am

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The rule at common law as incorporated into the legal system of the early United States was that a person is guilty of murder (and not some lesser offense of killing) if he killed another person during the commission or attempted commission of any felony. This rule is known as the “felony-murder rule.” It was abolished in England in the mid-20th century and never existed in such continental nations as France or Germany. The rule became common, however, in various jurisdictions throughout the United States, although it never escaped criticism.

Felony murder is bifurcated into first-degree and second-degree murder: the former arises when the killing of another results from the commission of an enumerated felony; the latter arises when the killing of another results from the commission of an unspecified felony. The felony-murder rule negates any investigation into the objective intent of the offender; it obtains regardless of whether the offender killed his victim intentionally, recklessly, accidentally, or unforeseeably. Although it dispenses with the element of malice that is requisite to a finding of murder, the felony-murder rule retains by implication the concept of malice insofar as the intent to commit a felony is, under the rule, constitutive of malice for murder. The rule, in essence, conflates the intent to commit one wrong with the intent to commit another wrong, namely, the termination of another’s life. The intent to do a felonious wrong is, on this understanding, sufficiently serious to bypass any consideration of the nature of the exact wrong that was contemplated.

The most common justification for the felony-murder rule is that it deters dangerous felonious behavior and decreases the chance that an innocent bystander will suffer bodily harm from a high-risk felony. The possibility of a more severe conviction and sentence, according to this theory, reduces the number of negligent and accidental killings that might have taken place during the commission of a felony. Oliver Wendell Holmes, Jr., supported the felony-murder rule, believing as he did that a felonious offender who kills another person during the commission of any felony ought to be punished as a murderer, even if the killing was not foreseeable based on the circumstances of the felony. Critics of the deterrence justification for the felony-murder rule have argued that no rule can deter an unintended act.

Another justification for the felony-murder rule is that it affirms the sanctity and dignity of human life. This justification answers in the affirmative the question whether a felony resulting in death is more serious than a felony not resulting in death. Because a felony resulting in death is, in fact, more serious, according to this logic, a felony murderer owes a greater debt to society and must accordingly suffer a more extreme punishment. Critics of this view argue that the culpability for the two separate harms—the felony and the killing—must remain separate and be analyzed independently of each other. These critics suggest that the felony-murder rule runs up against constitutional principles regarding proportional punishment (i.e., whether the punishment “fits” the crime) and that there is no justice or fairness in punishing a felon for a harm (death) that was unintended.

The Immunity Community

In America, American History, Arts & Letters, Britain, History, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy on September 10, 2014 at 8:45 am

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This piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

The doctrine of sovereign immunity derives from the English notion that “the king can do no wrong” and hence cannot be sued without his consent. The purpose of this doctrine was, in England, from at least the Middle Ages until eighteenth century, to bar certain lawsuits against the monarch and his or her ministers and servants. With the rise of the English Parliament after the death of Elizabeth I, government officers and politicians sought to gain the power of immunity that the monarch and his or her agents had enjoyed.

In practice, however, English subjects were not totally deprived of remedies against the monarch or the government. The doctrine of sovereign immunity was not an absolute prohibition on actions against the crown or against other branches of government;[1] subjects could avail themselves of petitions of right or writs of mandamus, for instance, and monarchs fearful of losing the support of the people would often consent to be sued.

It was not until the monarchy had been demonstrably weakened that the doctrine of sovereign immunity began to be espoused with added urgency and enforced with added zeal. In the late eighteenth century, Sir William Blackstone intoned in his Commentaries on the Laws of England that the king “is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly of weakness.” These lines convert sovereign immunity into sovereign infallibility, a more ominous yet more dubious pretension.

Once the monarchy had been abolished altogether, the idea that the sovereign had to consent to be sued no longer held credence. As Louis L. Jaffe explains, “Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit! If there was any successor to the King qua sovereign it was the legislature,” which, having many members subject to differing constituencies, was not as accountable as the monarch had been to the parties seeking to sue.[2]

The principle of sovereign immunity carried over from England to the United States, where most states have enshrined in their constitution an absolute bar against suing the State or its agencies and officers whose actions fall within the scope of official duties. The Eleventh Amendment to the U.S. Constitution likewise states that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This provision, which applies only in federal courts and which does not on its face prohibit a lawsuit against a state by a citizen of that same state, was adopted in response to the ruling in Chisholm v. Georgia (1793), a case that held sovereign immunity to have been abrogated and that vested in federal courts the authority to preside over disputes between private citizens and state governments.

Notwithstanding the complex issues of federalism at play in the Chisholm decision and in the Eleventh Amendment, the fact remains that the doctrine of sovereign immunity has been applied with widening scope and frequency since the states ratified the Eleventh Amendment in 1795. The U.S. Supreme Court has contributed to the doctrine’s flourishing. “The Supreme Court’s acceptance of sovereign immunity as constitutional principle,” explains one commentator, “depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.”[3]

State and federal courts have now built an impregnable wall of immunity around certain state and federal officers. The sovereign immunity that is enshrined in state constitutions is, in theory, not absolute because it is conferred only to certain agents and officers and does not prohibit lawsuits to enjoin such agents and officers from performing unconstitutional or other bad acts. In practice, however, the growth of qualified immunities, which is in keeping with the growth of government itself, has caused more and more agents of the State to cloak themselves in immunity.

Bus drivers, teachers, coroners, constables, high school coaches, doctors and nurses at university hospitals, security guards, justices of the peace, government attorneys, legislators, mayors, boards of education and health, university administrators, Indian reservations, prison guards and wardens, police officers and detectives, janitors in government facilities, licensing boards, tax assessors, librarians, railroad workers, government engineers, judges and justices, school superintendents and principals, towing companies, health inspectors, probation officers, game wardens, museum docents and curators, social workers, court clerks, dog catchers, contractors for public utilities, public notaries, tollbooth attendants, airport traffic controllers, park rangers, ambulance drivers, firefighters, telephone operators, bus drivers, subway workers, city council members, state auditors, agricultural commissioners—all have sought to establish for themselves, with mixed degrees of success, the legal invincibility that comes with being an arm of the state.

Yet the idea that “the king can do no wrong” makes no sense in a governmental system that has lacked a king from its inception. Its application as law has left ordinary citizens with limited recourse against governments (or against people claiming governmental status for the purpose of immunity) that have committed actual wrongs. When the government, even at the state level, consists of vast bureaucracies of the kind that exist today, the doctrine of sovereign immunity becomes absurd. If it is true that in nine states and in the District of Columbia the government employs more than 20% of all workers, imagine how many people are eligible to claim immunity from liability for their tortious conduct and bad acts committed on the job.

Local news reports are full of stories about government employees invoking the doctrine of sovereign immunity; few such stories find their way into the national media. Judge Wade McCree of Michigan, for instance, recently carried out an affair with a woman who was a party in a child-support case on his docket, having sexual intercourse with her in his chambers and “sexting” her even on the day she appeared as a witness in his courtroom. Although McCree was removed from office, he was immune from civil liability. An airport in Charleston, West Virginia, is invoking the doctrine of immunity to shield itself from claims that it contributed to a chemical spill that contaminated the water supply. Officer Darren Wilson may be entitled to immunity for the shooting of Michael Brown, depending on how the facts unfold in that investigation.

The U.S. Supreme Court once famously declared that the doctrine of sovereign immunity “has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”[4] A disestablishment is now in order. The size and scope of government is simply too massive on the state and national level to sustain this doctrine that undermines the widely held belief of the American Founders that State power must be limited and that the State itself must be held accountable for its wrongs. Friedrich Hayek pointed out that the ideal of the rule of law requires the government to “act under the same law” and to “be limited in the same manner as any private person.”[5] The doctrine of sovereign immunity stands in contradistinction to this ideal: it places an increasing number of individuals above the law.

If the law is to be meaningful and just, it must apply equally to all persons and must bind those who enforce it. It must not recognize and condone privileges bestowed upon those with government connections or incentivize bad behavior within government ranks. Sovereign immunity is a problem that will only worsen if it is not addressed soon. The king can do wrong, and so can modern governments. It’s time for these governments to be held accountable for the harms they produce and to stop hiding behind a fiction that was long ago discredited.


[1]See generally, Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 Harvard Law Review 1 (1963).

[2]Jaffe at 2.

[3]Susan Randall, “Sovereign Immunity and the Uses of History,” 81 Nebraska L. Rev. 1, 4 (2002-03).

[4]U.S. v. Lee, 106 U.S. 196, 207 (1882).

[5]F. A. Hayek, The Constitution of Liberty, Vol. 17 of The Collected Works of F.A. Hayek, ed. Ronald Hamowy(Routlege, 2011), p. 318.

Holmes’s Dissent in Bartels v. Iowa

In America, American History, Arts & Letters, History, Humanities, Jurisprudence, Law, Literary Theory & Criticism, Oliver Wendell Holmes Jr., Rhetoric, Rhetoric & Communication, Writing on June 18, 2014 at 8:45 am

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Bartels v. Iowa, 262 U.S. 404 (1923), is short and to-the-point, extending and confirming the principles released by the United States Supreme Court that very day in Meyer v. Nebraska,[i] a companion case to Bartels that is also short and to-the-point. In Meyer, the Court struck down a Nebraska law restricting the teaching of modern foreign-languages to students from kindergarten to eighth grade. The majority in Meyer found that the law violated the Due Process Clause of the Fourteenth Amendment on the grounds that it infringed upon the liberty interests of teachers, who had a right to practice their profession without the interference of the state with their curriculum so long as that curriculum did not violate explicit State policy.[ii] There was, the Court reasoned, no link between the putative purpose of the law—to protect the welfare of children—and a threat to the public interest.[iii] The law was deemed arbitrary and not reasonably related to a legitimate state interest and, therefore, unconstitutional.

Holmes reserved his Meyers dissent—which maintained that this Nebraska law was constitutional—for the Bartels opinion. In Bartels, the United States Supreme Court addressed an Iowa law similar to the Nebraska regulation and reversed a decision of the Iowa Supreme Court, which had upheld the criminal conviction of a teacher who taught German to his students. “We all agree, I take it,” Holmes began his dissent, “that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one” (Bartels 412). The pronoun “we” lacks a clear referent. Does Holmes mean “we” justices or “we” Americans? The answer is probably the latter because “we” was (and is) widely and fluidly used to signify the assembled justices on the bench.

Holmes claims that the “only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment” (Bartels 412). He submits that he will not judge the law according to whether it is good or right but only pursuant to the terms of the Fourteenth Amendment. He states, to that end, that he may “appreciate the objection to the law” (“I think I appreciate the objection to the law”) but that the role of the judge is not to take sides on moral or political issues “upon which men reasonably might differ” (Bartels 412). “I am not prepared to say that it is unreasonable,” Holmes explains, using litotes, “to provide that in his early years [a student] shall hear and speak only English at school” (Bartels 412). If it is not unreasonable, then it is reasonable, and “if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar” (Bartels 412).

Holmes’s dissent in Bartels is not known as one of his most notable or outstanding dissents. Nevertheless, it has been referenced not only by the United States Supreme Court[iv] but also by federal and state courts.[v] Although the majority opinion has never been overruled, Holmes’s dissent generally is cited favorably. My approximate calculation based on Westlaw searches is that this dissent has been cited almost 200 times in cases, administrative decisions, and federal court documents such as amicus curiae briefs.

The topic of his dissent—foreign languages in public schools—has been revisited by later courts because it remains relevant, and in that respect, it is not surprising that the dissent continues to be cited. Yet the topic alone does not explain why Holmes’s dissent in particular remains popular, especially if it is not binding precedent. There are other non-binding documents on the topic, including social science studies and law review articles, that are also relevant but that have not been cited in large numbers. Although Holmes’s reputation has something to do with the abundance of citations to his dissent, insofar as his legal opinion carries great weight among jurists, the properties of his dissent likely contribute to its ongoing appeal.

What are these properties? Besides litotes, mentioned above, there is also aphorism: “No one would doubt that a teacher might be forbidden to teach many things.” These words are carefully chosen. It would be absolutist to state that no one would doubt that a teacher is forbidden to teach many things, or to state that no one doubts rather than no one would doubt that a teacher might be forbidden to teach many things, or to state that no one would doubt that a teacher might be forbidden to teach a particular thing rather than many things. This short sentence is so well qualified that it manages to articulate a pithy generalization without succumbing to embellishment or misrepresentation. Moreover, the phrase “no one would doubt that a teacher might be” is anapestic, sharing the same feet of such memorable verses as “’Twas the night before Christmas and all through the house.”

In the opening line to a dissent about language, the deliberate use of sigmatism, or the repetition of “s” sounds for dramatic effect, is striking: “[…] is desirable that […] citizens of the United States should speak.” It is as if Holmes defamiliarizes the “common tongue” (his words) as he writes about the “time [of youth] when familiarity with a language is established.” At the very least, he highlights the nuances of language in a dissent expressed in nuanced language and addressing the very legality of language acquisition within a public institution. In addition, Holmes empowers his dissent with a religious-like seriousness by referring to his fellow justices as “brethren,” and he appears figuratively to objectify his “mind” as something separate from his “consciousness” when he claims that “I cannot bring my mind to believe.”

These moves are not merely literary grandstanding but the instantiation of an important feature of Holmes’s philosophical pragmatism: the fallibility of human intelligence. He will not profess certainty but will formulate his reasoning only in cautious qualifications.

Holmes follows, therefore, with the declaration that the objection to the prohibition on the teaching of foreign languages in Iowa “appears to me to present a question upon which men reasonably might differ”  (my emphasis). His belief in the inherent limitations of human faculties prevents him from saying that the objection does present a question upon which reasonable men may differ.

Having introduced the theme of human knowledge, he turns to metonymy by referring to the state legislation as an “experiment” that the United States Supreme Court should not prevent from taking place. For aught that appears, either the term “experiment” or the state legislation may indicate the other; they are reversible concepts within the paradigm that Holmes establishes here. Treating the states as if they were laboratories, he gestures toward his conviction that the widening capacity of the aggregate knowledge of the community is made possible by allowing social experiments to take place on the most local levels, where the consequences of failure are minimized, whereas the failure of United States Supreme Court justices to rule properly regarding some law or another will have vast consequences that affect social coordination throughout the entire country. Subtle turns of phrase are enough for Holmes to implicate this grand philosophical notion to which he owes his most insightful dissents.

[i]262 U.S. 390 (1923).

[ii] “As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child.” (Meyer 403)

[iii] “The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the state’s power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v. Tanner [citation omitted] pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state.” (Meyer 403).

[iv] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 518-19 (1969).

[v] Examples of federal court cases referencing Holmes’s dissent include the following: Yniguez v. Arizonans for Official English, 42 F. 3d 1217, 1242 (9th Cir. App. 1994); Kramer v. New York City Bd. of Educ. 715 F. Supp. 2d 335, 342 (E.D. New York 2010); and Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28-J, Aurora, Colo. 598 F. 2d 535, 540 (10th Circ. App. 1979). Examples of state court cases referencing Holmes’s dissent include State v. Hoyt. 84 N.H. 38, 146 A. 170, 171 (N.H. 1929), and Hamilton v. Deland, 198 N.W. 843, 227 Mich. 111, 113 (Mich. 1924).



Oliver Wendell Holmes, Jr., and the Literary Quality of his Prose

In America, American History, American Literature, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Oliver Wendell Holmes Jr., Poetry, Rhetoric, Writing on June 11, 2014 at 8:45 am

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Oliver Wendell Holmes Jr.’s writings are known for their literary qualities.  The Class Poet at Harvard, the son of a famous poet, and a lifelong devotee of Emerson, Holmes often rendered his judicial writings in poetic prose.  Consider the following lines from Gitlow v. New York, which I have reformulated as a poem:


                 Gitlow v. New York[i]

                 A Poem[ii] (1925)

Every idea

is an incitement.

It offers itself for belief

and if believed

it is acted on

unless some other belief

outweighs it

or some failure of energy

stifles the movement

at its birth.

The only difference

between the expression

of an opinion and an incitement

in the narrower sense

is the speaker’s enthusiasm

for the result.

Eloquence may set fire

to reason.

But whatever may be thought

of the redundant discourse

before us

it had no chance of starting

a present conflagration.


The plain, raw idioms and variable feet in these lines resemble those characteristically employed by Stevens and William Carlos Williams. Holmes’s language here is similar in tone and rhythm to Williams’s in “The Red Wheelbarrow,” which was published just two years before this dissent. Holmes’s alliterative use of the letter “n” emphasizes mobility, momentum, and ignition: “incitement,” “energy,” “movement,” “incitement,” “enthusiasm,” “conflagration.” These nouns suggest provocation, stimulus, instigation; they are tied to ideas themselves, as in the line “every idea is an incitement,” hence the correspondingly alliterative “n” sounds in the words “expression” and “reason.” The metrical regularity of “Every,” “offers it…,” “for belief,” “failure of,” “energy,” “stifles the,” “at its birth,” “difference,” “narrower,” “Eloquence,” and “had no chance” accents the activity associated with thinking insofar as these dactylic words and phrases pertain to ideas or beliefs. Holmes follows a series of dactyls with spondaic feet just as he describes the possibility of combustion: “Eloquence [stress / slack / slack] may set fire [stress / stress / stress / slack] to reason [stress / stress / slack].” It is as though he wishes to create the sense of building pressure and then of sudden release or combustion. Two unstressed lines abruptly interrupt the heightened tension; the first appears with the transitional conjunction “But,” which signals a change in the tone. Holmes appears to reverse the intensity and calm his diction as he assures us that the “redundant discourse,” a phrase made cacophonous by the alliterative “d” and “s” sounds, has “no chance of starting a present conflagration.” A sudden move to iambic feet and hence to a lightened tone rounds out these lines and suggests that Holmes has smothered or extinguished whatever energy had been building with the three-syllable feet. These lines have become some of the most famous in American constitutional history most likely because of their memorable qualities, which contributed to the eventual vindication of the dissent.

Be that as it may, feet and meter are basic to English speech and writing and may be displayed in many other legal writings by less able judges and justices. It would be difficult to prove that Holmes deliberately set out to invest these lines with literary features, at least those pertaining to alliteration and feet. Holmes no doubt had an ear for language and probably intended to employ alliteration, rhythm, and rhyme in his writings, but how far does his intent extend?  Does the scanning exercise above give Holmes too much credit and attribute to his writings undeserved praise?  There is no empirical way to answer this question, but the speculation is, I think, worth the time.


[i] Gitlow v. N.Y., 268 U.S. 652 (1925).


[ii] My addition.


Lines to Holmes

In America, Arts & Letters, Creative Writing, Humanities, Jurisprudence, Law, Law-and-Literature, Literature, Oliver Wendell Holmes Jr., Poetry, Writing on May 14, 2014 at 8:45 am

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Lines to Holmes

A canon of rules and principles,

embodied in individual cases,

aggregated by judges

from different courts

and with different ranks,

makes up the common law system.

Perhaps the better way to put it

is that the common law is a canon

unto itself.

Rules and principles

that regulate people

are always engaged in a struggle for existence,

always subject to challenge and subversion

by the trends and movements of culture.

Tested by their ability

to obtain to society

and to yield constructive results,

they compete with one another

and become canonized

only if they prove

fit to survive the test of time,

the onslaught of new technologies,

which necessitate new approaches

to lawyering.

This is the law of the law

today as always.

Holmes and the Pragmatic Common Law

In America, American History, Arts & Letters, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Scholarship, The Supreme Court on May 7, 2014 at 8:45 am

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No summary could do justice to the wealth of literature about Oliver Wendell Holmes Jr.’s relationship to C.S. Peirce, William James, and John Dewey, but a few points of commonality are worth mentioning. First, Holmes was akin to Peirce in the embrace of fallibilism and the scientific method. Holmes disliked natural law thinkers because they purported to know the truth about the law by way of reason or moral teaching. In contrast, Holmes believed that the common law gradually filtered out the most workable, although not necessarily the most moral, theories; in fact, he felt that it was not the province, expertise, or training of the judge to explore issues of morality. He also believed that truth was best determined by a community of inquiring minds rather than by a judge ruling in isolation or by a justice with only eight colleagues to help work through his or her analysis. Therefore, he adhered to the doctrine of judicial restraint and deferred to statutes enacted by legislatures, which consisted of representatives elected by and accountable to the people.

Second, his notion of truth was like James’s: fluid but ultimately associated with the conglomerate views of a majority that have been tested and corroborated by concrete evidence. Holmes did not share James’s optimism, but he did share his literary sparkle. He also shared James’s meliorism and pluralism. The Common Law is a testament to the melioristic nature of the common law system. Holmes’s judicial restraint and deference to local legislatures, moreover, attest to his recognition of diverse local communities and associations that enable social cooperation and legal growth.

Third, Holmes’s celebration of the instrumentalism of the common law smacks of Dewey’s instrumentalism and its Darwinian complements. Like Dewey, Holmes moved pragmatism away from the science, logic, and mathematics that intrigued Peirce, away from the moral psychology and religious vibrancy that intrigued James, and towards the social and political considerations that intrigued Dewey. Holmes and Dewey were, to some degree, consequentialists; they cannot be made out as pure utilitarians—far from it—but their analyses do tend to focus on the importance of outcomes to the evaluation of human action. Finally, Holmes and Dewey emphasized the value of experiment and were majoritarian in that they maintained faith in the ability of distinct communities to arrive at unique solutions to pressing social issues and to memorialize those solutions in official legislation.

These three pragmatist influences enabled Holmes to create a theory of the common law unique to him that both accounted for and distanced itself from the legal positivism of John Austin and Hobbes, who traditionally have been thought of as adversaries of common law theory.

Legal Positivism and the Common Law

In Britain, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Western Philosophy on April 30, 2014 at 8:45 am

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Legal positivism, in the most basic sense, holds that laws are the manifestation of sovereign commands. It stands in contradistinction to natural law or the judicial conformity with human reason that supposedly defines the common law.[i] Legal positivism generally rebuffs the premise that law and morals are necessarily or even customarily united. Legal positivists from Jeremy Bentham to John Austin to H.L.A. Hart maintained or implied that the formal source of the law was human promulgation, not nature or divine decree; theirs was an analytical jurisprudence that treated the normative function of the law as imposing rules and duties upon the subjects of the sovereign. Positivism generally holds that law is logical and analytical and made up of legislative policies with a linear history that can be understood through utilitarian calculation. To comprehend the law in the positivist paradigm requires analyzing the signification of words as grammatical imperatives—as “commands,” in Austin’s lexicon.

The common law, on the other hand, traditionally was seen as the vast accumulation of judicial decisions as against the commands of legislatures or the unbinding whims of equity courts; a legislative code announces rules whereas judicial decisions follow, clarify, and sustain them. The common law is a body of cases, a growing organism representing the general rules and inherited customs of the jurisdiction. It is simultaneously conservative and progressive. It comes together over time as innumerable judges and justices struggle with and against precedent to apply longstanding rules to new and unique situations. It responds and reacts to cultural norms rather than making them.

What distinguishes the common law from a civil law system is the doctrine of stare decisis (“let the decision stand”), which requires judges to follow precedents established by prior decisions or to distinguish the facts of new cases from the facts of previous cases in order to reach an applicable rule. Certain rules persevere because they triumph over lesser practices that have not worked. Oliver Wendell Holmes, Jr., explained that this process of creating and sustaining laws in graduated stages does not always make sense or produce the perfect outcome: “In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten.” If some laws seem to be artifacts, Holmes qualifies, they are not likely to burden the people subject to them, for their effect is in their use, and anyway it is only a matter of time before they are overgrown by the “secret root from which the law draws all the juices of life,” which is to say the legislature.



[i] The literature on this subject is enormous. The distinction between legal positivism, natural law, and the common law has been the object of discussion among so many jurists and jurisprudents over centuries that it is impossible to recommend a single text on the topic that would clarify all competing views. The most authoritative voice on matters of positivism today is probably Joseph Raz.


Thomas Jefferson, George Wythe, and the Case of Howell v. Netherland

In America, American History, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Slavery, Southern History, Thomas Jefferson on April 23, 2014 at 8:45 am

Allen 2

Howell v. Netherland was a Virginia case about the child of an interracial sexual union. Decided in April 1770, Howell opens with the account of the plaintiff’s grandmother, “a mulatto, begotten on a white woman by a negro man, after the year 1705, and bound by the churchwardens, under the law of that date, to serve to the age of thirty-one.”[1] The plaintiff, Howell, sued Netherland for his freedom. Netherland had purchased Howell from a previous owner, who had also owned Howell’s mother and grandfather.

A twenty-seven-year-old Thomas Jefferson served as Howell’s attorney. He argued inter alia that Howell’s grandmother was white, but more importantly that “under the law of nature, all men are born free.”[2] This position makes Howell a precursor to the landmark Somerset case in 1772.[3] “This is what is called personal liberty,” Jefferson says of freedom under the law of nature, “and is given him by the author of nature, because necessary for his own sustenance.”[4] Jefferson adds that “every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will.”[5] Such language, coming six years before the Declaration of Independence and eleven years before the first edition of Notes on the State of Virginia, is striking for its seeming emphasis on equality under the natural law.

Jefferson’s opposing counsel in this case was George Wythe, the man who had trained Jefferson in legal practice and who arguably did more during his lifetime than Jefferson to oppose the institution of slavery. In this case, however, Wythe remains the steadfast defender of a slave owner. This fact should remind us of the contingencies of lawyering and the conditions and qualifications that attach to any line of reasoning or rhetoric appearing in court documents about slavery.

When we review archives from the era of slavery in America, we must remember that a lawyer’s words cannot be taken as representative of his thoughts or worldview: he is a participant in a legal contest and advocating for the interests of his client. What Jefferson or Wythe thought about slavery cannot be deduced from this case, so attempts at such deduction should not be made.

[1] Howell v. Netherland, Jefferson 90, April 1770, available in Helen Tunnicliff Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, Vol. 1 (New York: Octagon Books, Inc., 1968) at 90-91.

[2] Ibid., my italics.

[3] William G. Merkel, “Jefferson’s Failed Anti-Slavery Proviso of 1784 and the Nascence of Free Soil Constitutionalism,” 38 Seton Hall L. Rev. 555 (2008) at 559.

[4] Ibid.

[5] Ibid.


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