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Vol 21 No 9 Sept/Oct 2016

Book of the Month

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Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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Oliver Wendell Holmes Jr,: Legal Theory and Judicial Restraint

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ISBN13: 9780521866507
ISBN: 0521866502
Published: December 2006
Publisher: Cambridge University Press
Country of Publication: UK
Format: Hardback
Price: £64.99
Paperback edition , ISBN13 9780521321921

Despatched in 6 to 8 days.

Oliver Wendell Holmes, Jr., is considered by many to be the most influential American jurist. The voluminous literature devoted to his writings and legal thought, however, is diverse and inconsistent. In this study, Frederic R. Kellogg follows Holmes’s intellectual path from his early writings through his judicial career. He offers a fresh perspective that addresses the views of Holmes’s leading critics and explains his relevance to the contemporary controversy over judicial activism and restraint.

Holmes is shown to be an original legal theorist who reconceived common law as a theory of social inquiry and who applied his insights to constitutional law. From his empirical and naturalist perspective on law emerged Holmes’s distinctive judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical legal positivism and contrasts him with a range of thinkers, including John Austin, Thomas Hobbes, H. L. A. Hart, Ronald Dworkin, Antonin Scalia, and other leading legal theorists.

  • Looks at Justice Holmes as a seminal thinker, and explains common law and constitutional law
  • Explains judicial restraint
  • Elucidates historical and contemporary legal philosophy

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1. A time for law
2. Playing king
3. Holmes’s conception of law
4. Common law theory revisited
5. Holmes and legal classification
6. The general theory of liability (and its critics)
7. Morals and skepticism in law
8. Judges, principles, and policy
9. Common law constitutionalism
10. Holmes’s theory in retrospect.