Tag Archives | Oliver Wendell Holmes

Posner on Lochner (UPDATED: Posner versus Posner?)

While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example.

Posner writes in the California Law Review:

The majority opinion in Lochner is easily forgettable yet well worth rereading in this connection. I quote a typical paragraph:

It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to and no such substantial effect upon the health of the employé, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employé (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employés. Under such circumstances the freedom of master and employé to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.

This is naked policy analysis; nothing in the Constitution, or in precedents that commanded respect, suggests that states can’t be allowed to place a ceiling on hours worked unless justified by a concern with workers’ health. The opinion, which I am tempted to quote in full, is so shallow that Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.[End


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Brief Review of “The Great Dissent” by Thomas Healy (UPDATED)

I’ve just finished reading “The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America” by law professor Thomas Healy. The book has received sterling views, and happens to be directly related to something I’m writing about now, so I was looking forward to reading it.

On the plus side, the book is a lively read, and provides a good amount of interesting information about Holmes in general, and how he came to be (rather suddenly, after having not been at all) a champion of judicial protection of freedom of speech.

But having known a fair amount about the subject matter previously, I was disappointed for several reasons. First, I’ve been curious for some time as to the extent that Brandeis’s views on freedom of speech influenced Holmes. After all, Holmes’s adoption of pro-free speech views correlated with Brandeis’s appointment to the Supreme Court, and I’ve seen occasional hints that Brandeis substantially influenced Holmes. But while Brandeis makes a few cameos in the book, his influence on Holmes’s First Amendment jurisprudence goes unexplored. I was also surprised to find no mention of the “House of Truth,” which Brad Snyder has shown was a significant influence on Holmes.

Second, I would have liked to have seen some discussion about why Holmes’s turnabout on freedom of speech wasn’t accompanied by a turnabout on other civil liberties issues, where Holmes remained largely opposed to judicial protection of individual rights (see, e.g., his dissent in Bartels v. Iowa and his notorious opinion in Buck v. Bell).

Third, while those issues went unexplored, Healy went into great detail about some aspects of Holmes’s personal life that while certainly interesting (and sometimes scandalous) didn’t seem to me to have anything to do with Holmes’s jurisprudence. As long-time readers […]

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