LAW 716SEM - Holmes and Brandeis

In his provocative book Divergent Paths: the Academy and the Judiciary, Judge Richard Posner asserts that American law schools have come to neglect the study of judicial doctrine. Especially being neglected is critical analysis of the personnel who apply doctrine to new cases, which is to say the judges. Judges are treated as black boxes. Evidence and argument go in, a decision comes out, but no one seems to know, or to be telling, what happens in between. The premise of this course is that a good deal can be learned by studying, in depth, the careers and output of two of the most influential justices ever to sit on the United States Supreme Court, Louis Brandeis and Oliver Wendell Holmes. Any judge is a product of his or her environment: social status, education, colleagues, political beliefs, work experience and, more generally, the era in which (s)he lives. Examining the justices in this context will yield insights into their body of work, their thought processes and, to put it colloquially, what made them “tick.” Holmes’ contributions to the philosophy of law and Brandeis’ brilliant career as a legal advocate have a special relevance here. The author of The Common Law wrote the great dissent in Abrams v. United States. The inventor of the Brandies Brief wrote the majority opinion in Erie Railroad v. Tompkins. Seeing their respective careers as a whole will enable students to appreciate that law is a human enterprise, written by judges and legislators, each of whom brings his or her unique background and point of view to bear on the issues confronting them.

Credits: 3