Allen Mendenhall, Auburn University, Temple University, West Virginia University, & Furman University, has published Holmes and Dissent (forthcoming in the Journal Jurisprudence). Here is the abstract.
Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Dissents were, for Holmes, sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and aesthetic the language, the more likely it was for future judges and commentators to return to that dissent to reconsider Holmes’s argument – the more likely, that is, that non-law might become law. In this sense, language for Holmes was not just a vehicle for law but also law itself. This article argues that Holmes’s dissents both reflect and revise pragmatist philosophy and also that the outgrowth of the dissent has to do with American pragmatism. Focusing on Lochner v. New York (1905), Abrams v. United States (1919), and Bartels v. Iowa (1923), this article shows how Holmes’s dissents represent an aesthetic adaptation of pragmatism that allows his writing to become memorable not just for the ideas it articulates, but also for the way it articulates ideas.The full text is not available from SSRN.