Monday, November 9, 2009

Kellogg on Holmes on Judicial Restraint

Frederic R. Kellogg, University of Edinburgh Law School, has posted Holmes, Common Law Theory and Judicial Restraint, which originally appeared in John Marshall Law Review 36 (2003): 457. Here is the abstract:
Judicial restraint is a subject properly bound with the interpretation, and hence the definition, of law. The nature and contours of what judges interpret dictate what is appropriate for them to do. Supreme Court Justice Oliver Wendell Holmes, Jr., who was a scholar and a philosopher before a judge, espoused a pronounced form of judicial restraint in constitutional law. In form and explanation, Holmes' judicial self-restraint is unlike versions found in recent literature. Rooted in a theory of the common law and associated with insights common among early American pragmatic philosophers, its most remarkable aspect is a radical form of nonintervention, not mere moderation. To be properly understood, it must be examined in light of a distinctive concept of law.
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