Warden on Disenchanting Justice Holmes @LSULawCenter @TulaneLaw @UIllLRev

Derek Warden, Law Clerk, Louisiana Supreme Court, is publishing Disenchanting Justice Holmes, in volume 2021 of the University of Illinois Law Review. Here is the abstract.

Over the last several years, the United States has seen the “cancellation” of numerous public figures. While the concept of “cancel culture” is of great concern to society, bringing recognition to the failures of public figures and powerful people is important. Truth should always be spoken to power. However, it is disheartening when those who have committed and encouraged some of the most heinous actions are continuously venerated by powerful institutions. The purpose of this letter is to encourage the discontinuation of such veneration for one jurist, Justice Holmes. I do not mean to “cancel” Justice Holmes in the modern sense, but to disenchant him. By this I mean to pull back the curtain, expose the wizard for the man he is; and, based on one opinion, show that such continued infatuation with Justice Holmes is improper. Of course, Justice Holmes is not the only Justice who has failed society. We have seen the Supreme Court fail on numerous occasions. Many of the Court’s worst decisions are deemed to have been wrong the day they were decided. This so-called “anticanon” represents America at its worst. We know these cases by the names of the litigants: Dred Scott, Plessy, Korematsu, and Lochner. Conspicuously absent from that typical pantheon of error is perhaps the worst of all, second only to Dred Scott—Buck v. Bell. Buck is the case which prompts this essay.

Download the essay from SSRN at the link.

James on Holmes In Nature and Across Time: Book Review of The Black Book of Justice Holmes

Robert A. James, Pillsbury Winthrop Shaw Pittman LLP, has published Holmes In Nature and Across Time. Here is the abstract.

In a review of The Black Book of Justice Holmes (2021), edited by Michael F. Hoeflich and Ross E. Davies, James comments on the nature observations of the celebrated jurist contained in the transcript of a commonplace volume maintained for decades. He further elaborates on Alger Hiss's concept of the Great Span--the connections across centuries forged by individuals of extraordinary longevity and celebrity--and applies it to Justice Holmes, his 1930 law clerk, and the present day.

Download the essay from SSRN at the link.

Davies on The Holmeses at the Supreme Court @GB2d @georgemasonlaw

Ross E. Davies, George Mason University School of Law; The Green Bag, is publishing The Holmeses at the Supreme Court in Holmes Reads Holmes: Reflections on the Real-Life Links Between the Jurist and the Detective in the Library, In the Courtroom, And on the Battlefield (The Lawbook Exchange, Ltd., 2020). Here is the abstract.

When Oliver Wendell Holmes, Jr., the famous real-life lawyer, arrived at the U.S. Supreme Court in 1902, he brought with him -- consciously or not, I do not know which -- Sherlock Holmes, the famous fictional detective. After that, Sherlock Holmes began appearing in many context involving the Supreme Court and individual Justices. This is a survey of those Holmesian-Sherlockian developments during the first three-and-a-half decades of the 20th century.

Download the essay from SSRN at the link.

Newly Published: Alexander Lian: Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020) @CambridgeUP

 Alexander Lian has published Stereoscopic Law: Oliver Wendell Holmes and Legal Education (Cambridge University Press, 2020). Here from the publisher's website is a description of the book's contents.

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's “The Path of the Law,” presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts “The Path of the Law” within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions “The Path of the Law” has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's “theory of legal study” broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.

The book is available through Cambridge Core.

 

Mendenhall on Justice Holmes, Bad Boy @allenmendenhall

Allen Mendenhall, Faulkner University School of Law, is publishing Justice Holmes, Bad Boy in volume 34 of the Berkeley Journal of Gender, Law & Justice (2019). Here is the abstract.

James M. Kang's "Oliver Wendell Holmes and Fixations of Manliness" undertakes a particularly charged subject in light of the #MeToo Movement and accumulating accusations of "toxic masculinity." Kang is right to recognize the abiding influence of Ralph Waldo Emerson on Holmes, but his construal of manliness or masculinity is generalized and ill-explained. The lack of a clear definition for manliness confounds Kang's treatment of Holmes as a reckless youth and than as a grown man who admired soldierly courage. Nor does Kang demonstrate a familiarity with polemical, important theories in the field of gender studies. This review essay suggests that a more persuasive interpretation of the manliness that appears to characterize Holmes might be found in Harvey C. Mansfield's insightful yet controversial "Manliness," which discusses the Darwinian, Nietzschean influences that shaped conceptions of manliness in the late nineteenth and early twentieth centuries. Although Mansfield does not make room for Emerson or Holmes in his study, he captures the Emersonian individualism that Kang identifies in Holmes. Mansfield's focus on Nietzsche is striking in light of the philosophical nexus between Emerson and Nietzsche, and indeed between Holmes and Nietzsche.

Download the article from SSRN at the link.

SMU Law Review's Free Speech Symposium: The 100th Anniversary of Schenck and Abrams @SMULawReview @SMULawSchool

The Southern Methodist University Law Review has published scholarship from its recent Free Speech Symposium in its current issue. Read the articles online here.  A great line-up of authors!

Lackland H. Bloom, Jr., The Lessons of 1919

Dale Carpenter, Born in Dissent: Free Speech and Gay Rights

Larry Alexander, Inciting, Requesting, Provoking, or Persuading Others To Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence

Kent Greenawalt, Speech and Exercise By Private Individuals and Organizations

Ronald J. Krotoszynski, Jr., The Clear and Present Danger Test: Schenck and Abrams Revisited

Mari Matsuda, Dissent In a  Crowded Theater

Rodney A. Smolla, "And the Truth Shall Make You Free": Schenck, Abrams, and a Hundred Years of History

Alexander Tsesis, Deliberative Democracy, Truth, and Holmesian Social Darwinism

G. Edward White, Falsity and the First Amendment

Christopher Wolfe, Originalist Reflections on Constitutional Freedom of Speech

Cross-posted to Media Law Prof Blog

Carpenter on Free Speech and Gay Rights @SMULawSchool

Dale Carpenter, Southern Methodist University School of Law, has published Born in Dissent: Free Speech and Gay Rights at 72 SMU Law Review 375 (2019). Here is the abstract.

It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his dissent in Schenck v. United States. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites—all of these—would have been swept away in the absence of a strong and particularly libertarian First Amendment. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal. This essay tells the story of the Chicago-based Society of Human Rights, the very first gay political organization in the United States, which was founded by Henry Gerber in 1924—five years after Schenck, but before the full meaning of the dissent was accepted First Amendment doctrine. The police quickly shut down the group and arrested its members. Justice Holmes himself never met Gerber. He would have found the idea of a gay rights organization incomprehensible, something more akin to the bizarre sex cult Chicago police thought they had discovered rather than the noble experiment Gerber thought he was launching. But if it’s true that the best test of truth is the power of the thought to get itself accepted in the competition of the market, the idea of freedom and equality for LGBT people has attained the status of Holmesian truth.

Download the article from SSRN at the link.

Bloom on The Lessons of 1919 @SMULawReview

Lackland Bloom, Southern Methodist University School of Law, has published The Lessons of 1919 at 72 SMU Law Review 361 (2019). Here is the abstract.

One hundred years ago, the Supreme Court embarked on its first serious consideration of the First Amendment’s guarantee of freedom of speech. In 1919, the Court upheld four federal criminal convictions over First Amendment defenses. Three of the majority opinions were written by Justice Holmes. In the fourth, he offered a classic dissent. Two of the cases, Frohwerk v. United States and Debs v. United States, are of middling significance. The other two, Schenck v. United States and Abrams v. United States, are iconic. From these cases have sprung an expansive and complex jurisprudence of free speech. The author elaborates on these historical cases, and their significance to freedom of speech doctrine and jurisdiction.

Download the article from SSRN at the link.

Mendenhall on Justice Holmes, Bad Boy @allenmendenhall

Allen Mendenhall, Faulkner University School of Law, is publishing Justice Holmes, Bad Boy in volume 34 of the Berkeley Journal of Gender, Law & Justice. Here is the abstract.

James M. Kang's "Oliver Wendell Holmes and Fixations of Manliness" undertakes a particularly charged subject in light of the #MeToo Movement and accumulating accusations of "toxic masculinity." Kang is right to recognize the abiding influence of Ralph Waldo Emerson on Holmes, but his construal of manliness or masculinity is generalized and ill-explained. The lack of a clear definition for manliness confounds Kang's treatment of Holmes as a reckless youth and than as a grown man who admired soldierly courage. Nor does Kang demonstrate a familiarity with polemical, important theories in the field of gender studies. This review essay suggests that a more persuasive interpretation of the manliness that appears to characterize Holmes might be found in Harvey C. Mansfield's insightful yet controversial "Manliness," which discusses the Darwinian, Nietzschean influences that shaped conceptions of manliness in the late nineteenth and early twentieth centuries. Although Mansfield does not make room for Emerson or Holmes in his study, he captures the Emersonian individualism that Kang identifies in Holmes. Mansfield's focus on Nietzsche is striking in light of the philosophical nexus between Emerson and Nietzsche, and indeed between Holmes and Nietzsche.

Download the article from SSRN at the link.

Donelson on Oliver Wendell Holmes as Nihilist @LSULawCenter

Raff Donelson, Louisiana State University, has published The Nihilist at The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. 31-48 (Seth Vannatta, ed. Lexington Press 2019). Here is the abstract.

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

Download the essay from SSRN at the link.

New in Paperback: Mendenhall on Oliver Wendell Holmes, Jr., Pragmatism, and the Jurisprudence of Agon @allenmendenhall @BucknellUPress @RLPGBooks

New in paperback: Allen Mendenhall, Faulkner University School of Law, Oliver Wendell Holmes, Jr., Pragmatism, and the Jurisprudence of Agon: Aesthetic Dissent and the Common Law (Rowman and Littlefield/Bucknell University Press, 2016). Here from the publisher's website is a description of the book's contents.

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.

Cameron on Thomas Healy's "The Great Dissent:" Oliver Wendell Holmes and the Abrams Decision

Jamie Cameron, Osgoode Hall Law School, has published The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed the History of Free Speech in America, by Thomas Healy as Osgoode Hall Studies Research Paper No. 65/2016. Here is the abstract.

Thomas Healy’s The Great Dissent re-treads the familiar story of US Supreme Court Justice Holmes’s First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy’s book demonstrates that fresh perspectives on this vital and ever-intriguing change of mind or transformation on Holmes’s part remain possible. The review offers its own perspective by highlighting the process of “reverse mentoring” which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day – Laski, Frankfurter, Chafee – and showing how Justice Holmes’s landmark dissent in Abrams was nonetheless and indisputably a product of his own jurisprudential ingenuity.

Download the text from SSRN at the link. 

Kang on Oliver Wendell Holmes and the Obsessions of Manliness

John M. Kang, St. Thomas University School of Law, is publishing Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness in volume 118 of the West Virginia Law Review (2016). Here is the abstract.

In order for constitutional democracy to endure, Americans must be tough, must be manly — and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War. Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.

Download the article from SSRN at the link.

Oliver Wendell Holmes and Pragmatism

Allen Mendenhall, Auburn University, is publishing Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.'s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey in volume 48 of the South Carolina Review (2015). Here is the abstract.

Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey.

Download the article from SSRN at the link.

Legal Realism As the Basis For a Law School Curriculum

Robert Rubinson, University of Baltimore School of Law, has published The Holmes School of Law: A Proposal to Reform Legal Education Through Realism at 35 Boston College Journal of Law & Social Justice 33 (2015).

This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about “law in fact” — how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all legal education ignores law as experienced by low-income people. The article concludes with responses to anticipated objections to the proposal.

Download the article from SSRN at the link.

Holmes, Emerson, and Agonism

Allen Mendenhall, Auburn University, has published Oliver Wendell Holmes Jr. Is the Use of Calling Emerson a Pragmatist: A Brief and Belated Response to Stanley Cavell at 6 Faulkner Law Review 197 (2014). Here is the abstract.

This essay investigates the relationship between Ralph Waldo Emerson and Oliver Wendell Holmes, Jr. in the context of the common law. Holmes’s Emersonian writings, in particular his dissents, fall within the theoretical framework of agonism, which Harold Bloom refers to as a revisionary and Emersonian “program.” Agonism as a political and aesthetic theory maintains that sites of contestation can be productive rather than destructive; it suggests that confrontational relationships can be at once mutually offsetting and generative. Drawing from the Greek word for an athletic competition, agonism applied to rhetoric underscores the importance of mutuality to conflict: writers struggling against other writers understand and admire, yet seek creatively to outdo and overcome, their competition. The common-law system substantiates this theory insofar as every case answers an anterior case and creates a succession of precedents marked by strong judges and justices struggling against their predecessors. I submit that Emerson and Holmes were both pragmatic champions of descendent agonism, the former in the American literary tradition and the latter in the American common-law tradition that is distinct from its British precursor.

Download the article from SSRN at the link.

The Development of the Theory of Enterprise Liability From the Late Nineteenth Century through the 1970s

Edmund Ursin, University of San Diego School of Law, has published Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability in volume 50 of the San Diego Law Review (Summer 2013).  Here is the abstract.

Enterprise liability is a term associated with the tort lawmaking of the liberal “Traynor era” California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This manuscript examines the evolution of each of these theoretical movements from Holmes’s great 1897 essay, “The Path of the Law,” to the present day. Its focus is on the great judges and scholars whose views have shaped our own: Holmes, Cardozo, the Legal Realists Leon Green and Karl Llewellyn, Traynor, and Posner.
Stated simply, the shared jurisprudential view of these great judges and scholars is that in our system judges are legislators as well as adjudicators — and policy plays a role in their lawmaking. In the common law subjects, in fact, judges are the primacy lawmakers. In constitutional adjudication they are also lawmakers but lawmakers aware of the general need for deference to other branches. No fancy formulas such as “neutral principle “or “original meaning” can capture this role. Indeed, the leading academic theorists of the past century — and today — have been out of touch with the reality of judicial lawmaking as it has been expressly articulated by these great judge. We also see in the works of these judges and scholars the origins of the enterprise liability doctrines that the pragmatic Traynor era court of the 1960s and 1970s, would adopt, including the doctrine of strict products liability and expansive developments within the negligence system.

Download the article from SSRN at the link. 

Originality, Copyright, Law, and Judging

Erlend Lavik, University of Bergen, and Stef Van Gompel, University of Amsterdam, Institute for Information Law, have published On the Prospects of Raising the Originality Requirement in Copyright Law: Perspectives from the Humanities at 60 Journal of the Copyright Society of the USA 387 (Spring 2013). Here is the abstract.

In 1903, in Bleistein v Donaldson Lithographing, Justice Holmes famously concluded that judges are ill-suited to make merit judgments when determining the eligibility for protection of works. Subsequent courts and commentators have generally followed his caution. Yet, no one has thought through how the copyright system would work were Justice Holmes not heeded. What if courts were called upon to determine the aesthetic merit of a work? How would they go about it? And would they be able to separate the gold from the dross by drawing upon an aesthetic evaluation of such kind?
These questions inevitably arise upon reading some recent proposals to raise the originality threshold. Though it is rarely explicitly recognized, the reconfiguration that these proposals entails would effectively bring originality’s meaning in copyright law more into line with how the term is used in aesthetics, where it is considered a function of the work’s level of creativity, measured by its degree of departure from conventional expression.
Drawing on the concept of domain from sociocultural studies of creativity, we explain just why it would be so enormously problematic for courts to identify and to apply a stricter originality criterion that would require them to make decisions on the basis of merit. By comparing the domain of copyright law to the domain of patent law, we argue that it is the latter’s relative coherence and orderliness that enables patent examiners to get traction when assessing an invention’s degree of non-obviousness. The cultural domain, by contrast, is less rule-bound, and therefore non-obviousness is much harder to establish and validate. Aesthetics – both as a set of cultural practices and products and as an academic discipline – are simply too heterogeneous to provide adequate toehold for the legal analysis of higher degrees of originality.
Exploring the reasons and reasoning behind the ban on aesthetic merit in copyright law from a humanities perspective, this article offers a more detailed and nuanced account of Justice Holmes’ conclusion. Contrary to conventional wisdom we argue that the inherent subjectivity of aesthetic preferences does not in itself make it any harder to pinpoint an objective standard of aesthetic merit, though it does make it harder to provide justification for any such standard. Furthermore, the article questions the premise on which the proposal to raise the originality threshold rests, namely that it will cause the undeserving bottom of works to fall out, leaving only aesthetically worthy and socially valuable works protected. Before introducing a stricter originality criterion we need a more careful and empirically based analysis of just what the problems are, what areas of copyright law are affected, and exactly how and why a higher threshold would improve the situation.

Download the article from SSRN at the link. 

Tracing the History of Freedom of Sexual Expression Under the First Amendment

Ronald K. L. Collins, University of Washington School of Law, has published Theodore Schroeder and the Pre-1919 Defenses of Free Speech: The Case for Freedom of Sexual Expression as University of Washington School of Law Research Paper No. 2013-16. Here is the abstract.

The modern First Amendment began with a turn of the clock, on a Monday on March 13, 1919, the moment of the release of Justice Holmes’s seminal opinion in Schenck v. United States. At that pinpoint in time, First Amendment history was reconfigured and the liberty-denying past gradually began to fade away in the years and opinions that followed. Holmes laid his claim to the conceptual turf and what followed is what we call modernity. True, Learned Hand had his moment, too, in 1917 with his district court opinion in Masses Publishing Co. v. Patten. But that opinion, for all its insights, took on meaning primarily as a comparative point to the work of the Great Holmes. And then there is the work of Zechariah Chafee, the scholar who lent his own measure of staying power to the Holmesian notion of free speech law. Before these three Harvard men, however, there was Utah born man who came onto the First Amendment scene, a man far less credentialed and polished, a University of Wisconsin Law School trained lawyer who championed a libertarian creed and contested the will of a very powerful man, Anthony Comstock. That radical lawyer, whose name and work have largely remained cabined in the confines of forgotten history, was Theodore A. Schroeder. Like Holmes, he too had a vision of free speech law. What follows is the first of a series of articles that introduces the reader to Schroeder and his many works concerning free expression. Those works first took root not in political speech, but in area of freedom far more important to the progressives of his day – sexual expression. We come to his story thirteen years before Holmes’s glorious moment in 1919, on an occasion when Messrs. Schroeder and Comstock were to debate the topic of sexual expression. Several months later, Theodore Schroeder published an article in the Albany Law Journal (“The Constitution and Obscenity Postal Laws”), which is the main focus of this article. Drawing on a measure of history and analysis, the aim is to provide the reader with an idea of how Schroeder conceptualized his vision of free speech freedom.

Download the paper from SSRN at the link. 

Holmesian Constructions

Brad Snyder, University of Wisconsin Law School, has published The House that Built Holmes at 30 Law & History Review 661 (2012). Here is the abstract.

Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the House of the Truth. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.

Download the article from SSRN at the link.