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Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon - Aesthetic Dissent and the Common Law (Paperback)
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Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon - Aesthetic Dissent and the Common Law (Paperback)
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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.
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