Talk:Oliver Wendell Holmes Jr.

New Extensive Resource
The Harvard Law School Library has published a website for searching, browsing, tagging and discussing over 130k Oliver Wendell Holmes, Jr. documents. I've added it to the 'external links' section. — Preceding unsigned comment added by 140.247.226.18 (talk) 18:42, 2 January 2013 (UTC)

Untitled
Interesting potential trivia: I once had a professor who claimed that Holmes had met both John Quincy Adams (when Holmes, Jr. was a young child, which was possible considering that his prominent father probably knew JQA) and Lyndon B. Johnson. Has anybody ever run across that fact? I have questioned the LBJ claim as Holmes died before LBJ was first elected to Congress, but it is possible based on their ages.Gurss (talk) 19:32, 17 April 2008 (UTC)

Buck v. Bell
Does Buck v. Bell deserve the level of prominence it receives in this article? I would think Lochner, the free-speech cases, and his dissents presaging Erie Railroad Co. v. Tompkins (e.g., Black and White Taxicab Co. v. Brown and Yellow Taxicab Co. and Southern Pacific Co. v. Jensen) deserve the same level in the hierarchy as Buck. I understand that they're subsumed into other section headings and so don't require separate treatment, but it's a bit tendentious to put Buck front-and-center in this way. Glancing at the Contents box, it makes Buck appear equal in importance to Holmes's time on the SJC and to the rest of his career on the Supreme Court. Ethan826 (talk) 06:36, 18 May 2011 (UTC)

Is Buck v. Bell really an exception to his progressivism? Eugenics was, in the 1920s, seen as a progressive philosophy (its primary opponents at that point was organized religion at that), unifying science with policy and all of that. Anyway I won't change it but I'm not sure Buck v. Bell was an exception to progressivism in Holmes' day, though it clearly is to a modern (post-WWII) sense of the term. --Fastfission 16:12, 16 Sep 2004 (UTC)
 * You are correct; the discussion has been changed.

Is Darwinism really an accurate term to describe Holmes' judicial philosophy, or his opinion in Buck v. Bell? Social Darwinist, maybe, if someone can provide some sort of evidence to that point, but the Darwinism article linked to here mentions only biological evolution.
 * I think his argument was more economic, to wit: "sapping the strength of the state". Here's a more fuller quote:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange, indeed, if it could not call upon those who already sapped the strength of the state for these lesser scarifies in order to prevent our being swamped by incompetents. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent their propagation by medical means in the first place. Three generations of imbeciles are enough. Rklawton 21:17, 16 January 2007 (UTC)
 * "Social darwinism" is probably the better term. Holmes was a follower of Malthus and Herbert Spencer, believed that evolution proceeded through competition of groups over scarce resources; so economic terms are used to describe evolutionary pressures, but Holmes was sympathetic to biological, eugenic measures like forced sterilization of criminals and "incompetents," to improve the competitive position of his "race," and even looked forward to the prospect of infanticide at birth. Not a happy story, in retrospect, but in line with Progressive thought of the day (although the notion of infanticide was extreme, at least in the United States). For Holmes's views, see his essays "The Path of the Law" and "Law in Science, Science in Law." The whole question of Holmes's social darwinist views is discussed in Alschuler, "Law Without Values," cited in the article.Sheldon Novick 18:59, 23 January 2007 (UTC)

Retirement or resignation?
On List of Justices of the Supreme Court of the United States, it says retirement. On this page, it only says "step down". Better do something about it. -- Toytoy July 2, 2005 03:34 (UTC)

Boston Brahmins?
This phrase is used in the 2nd paragraph. What does it mean? Was Holmes a Hindu?
 * No, Holmes was not Hindu. Brahmin is a reference to the elite of Boston society. In the interest of clarity over colloquialism, Wikipedia should probably not be using undefined metaphors. --Blainster 18:37, 3 October 2005 (UTC)
 * It's not really a metaphor but is a fairly well-established way of referring to Boston's WASP elite during the 19th and early to mid 20th centuries.
 * "Well-established" is relative. I understand that it is familiar to Bostonians, and have corrected my earlier statement that implied it was a novel use, but specialized terms in a general encyclopedia should be either defined or linked, so that confusion of the type above is not generated.  --Blainster 21:21, 7 October 2005 (UTC)
 * funnily enough, his father coined the term. Or at least "New England Brahmin."

Literature
I added a references to Louis Menand's The Metaphysical Club: A Story of Ideas in America (2001), which devotes a lengthy chapter to Holmes and his background. There certainly is significantly more.

URL
The URL for this page unfortunately ends in a full-stop (period). Consequently, many mail agents misinterpret the full-stop as sentence punctuation, thereby truncating the URL to: http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr

But clicking on this link leads only to the polite wikipedia version of a "page not found". It is therefore quite difficult to include this link in an email. The only way I can see around that is to use the following form: http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr%2E

Suggestion: change the URL from: "http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr." to: "http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr" yoyo 15:33, 23 October 2006 (UTC)


 * Problem has been solved by creating redirect from truncated title (missing full stop) to the existing title. --Blainster 21:28, 31 October 2006 (UTC)

The most opinions?
Is there a source for the statement that Holmes wrote more opinions than any other justice or judge of courts of last resort? I'm skeptical that anyone has validated this, but it's important if true, so a reference would be good. Newyorkbrad 12:51, 31 October 2006 (UTC)

Um, statement made on my authority, based on work for forthcoming final volumes of Holmes's Collected Works. But you are right that hard to demonstrate, and anyway maybe not needed. I will delete. Sheldon Novick 15:38, 2 November 2006 (UTC)


 * I should have checked who added it; I would have trusted you implicitly. Does he hold the record for a U.S. Supreme Court Justice? That would be easy enough to verify (maybe it's in the Compendium). Regards, Newyorkbrad 17:19, 2 November 2006 (UTC)

Thanks for the vote of confidence, but I think you had a good point. Holmes was nowhere near a record number of opinions for US Supreme Court, easy to verify because all are in Lexis and Westlaw databases; his record, if it is one, rests on my own database of his Mass SJC opinions (commercial databases start at 1890 for state courts). I am reasonably confident of number of Holmes opinions - the problem is in knowing what other state court justices might have done. I was silently comparing with known claims, but it is not really possible to tell. And the number of Holmes opinions alone is not very interesting. So maybe best left off? I have had the thought for some time to make my database accessible online, but don't really have the knowledge or tools. But that would be the place to make the point, if it can be made. . .  Anybody out there want to help turn an ancient WordPerfect CD into an online database? Sheldon Novick 13:35, 3 November 2006 (UTC)

A.D Club?
Does anyone know what this is, or why it is important to include in Holmes's undergraduate career? Sheldon Novick 13:38, 3 November 2006 (UTC) Oh, I see that it is one of the dining clubs. But Holmes was in Porcellian, not A.D. Sheldon Novick 12:59, 4 November 2006 (UTC)
 * There seems to be a friendly rivalry among these clubs, resulting in mini-vandalism here as different clubs try to "claim" Holmes (and probably other famous Harvard graduates) as an alum. Thanks for fixing; the article read "A.D." for awhile; someone changed it to "Fly Club" the other day.... Is the Porcellian the club that Learned Hand was blackballed from? Newyorkbrad 13:10, 4 November 2006 (UTC)

According to here, he was VP of AD.--2601:191:C001:238E:48AB:BB1B:C5BB:DA77 (talk) 19:15, 1 July 2015 (UTC)

Date of Appointment
Gray resigned from Court in July, after long decline into illness; Holmes had already been chosen for seat and Roosevelt sent his name up promptly on Aug. 11. See Friedman and Israel, The Justices etc. vol 2, p. 1388, my Honorable Justice p. 236. Sheldon Novick 16:02, 29 November 2006 (UTC)
 * Thanks. The confusion arises from the fact that Gray's biography on the Federal Judicial Center site indicates that Gray served until his death on September 15, 2006, so that's what's used here in the Wikipedia Horace Gray article as well as in List of Justices of the Supreme Court of the United States. Newyorkbrad 16:08, 29 November 2006 (UTC)
 * This gets a little curiouser, as the front matter of volume 187 of the United States Reports, which one could think of as an authoritative source for this sort of thing, states that "Oliver Wendell Holmes, Associate Justice, appointed in place of Horace Gray, Associate Justice, who died September 15, 1902, took his seat December 8, 1902." (187 U.S. iii) The same volume contains an allotment of the Justices dated October 20, 1902, which does not include Justice Holmes, and then there is a subsequent allotment dated December 8, 1902, which includes the assignment of Justice Holmes to the First Circuit. This allotment was issued in view of "[t]here having been an associate justice of this court appointed since the commencement of this [October 1902] term]." (187 U.S. xxxiii) There is no indication that Holmes participated in any cases decided in October or November. Meanwhile, our list of Massachusetts Supreme Judicial Court indicates that Holmes was a member of that Bench until December 8, 1902; of course, he could not have served on that Court and the United States Supreme Court simultaneously. All of this seems to suggest that if President Roosevelt intended a recess appointment of Holmes in August, it never came to fruition, despite discussion in several recent studies, partisan and non-partisan, of recess appointment authority to the contrary. When I have a chance I should check the Senate Executive Journal for further data there. Newyorkbrad 00:40, 5 December 2006 (UTC)
 * My apologies to all. I have not checked back to see who first said "recess appointment," but that was not correct. Roosevelt did announce Holmes's appointment on Aug. 11, during a recess, but it was not a recess appointment. It was not confirmed by the Senate until Dec. 4, because Sen. George Hoar wanted to show his displeasure. Holmes took the oath and took his seat on Monday, Dec. 8, 1902, and did not submit his resignation to the Mass SJC until then (a bit tacky, that).  I don't know when Gray's resignation took effect,but possibly it was held until his death, for the sake of his widow. I am relying for all this on Holmes's papers, or rather my notes taken from them some years ago, but it squares with the chronology that Newyorkbrad has kindly compiled. Sheldon Novick 00:38, 7 December 2006 (UTC)
 * No one is to blame; a quick Google search on "Oliver Wendell Holmes recess appointment" produces lots of non-Wikipedia-derived sources making this claim. As indicated, I will check the Senate Executive Journal to see if I can turn up anything else. Newyorkbrad 00:48, 7 December 2006 (UTC)
 * It occurs to me, although it's speculative, that Holmes might have declined to accept a recess appointment because it would have entailed giving up his seat on the state court, and then if the Senate failed to confirm him, it would have left him without either position. Newyorkbrad 00:49, 7 December 2006 (UTC)

"Get down, you damned fool"
This story is a meme that I have deleted before. There is some authority for its truth. It has its origin in Lincoln's amused account to his secretary, John Hay, of an incident that occurred on July 11, 1864, when Lincoln visited Fort Stevens in a Maryland suburb of Washington and observed the preparations for Jubal Early's assault, when an unnamed soldier shouted at him. Holmes most likely did not arrive at the fort until July 12, when Lincoln returned with a large entourage to observe the battle. Sixty years later, when Holmes had become a famous man, the story was attached to him, and it was repeatedly published; Holmes himself then claimed it, although his biographers think he most likely was stretching the truth. See Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years: 1841-1870. Harvard University Press, 1963, pp. 171-175; Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes. Boston: Houghton Mifflin, 1989, pp. 88, 422n. As the story is contested, and of no particular importance in Holmes's life, I think it best to omit. It might be added to the "quotations" list if someone thinks it worth the trouble; many of these are apocryphal. Sheldon Novick 14:15, 29 December 2006 (UTC)

Wasn't the "Clear and Present Danger" Test replaced by the "Imminent Lawless Action" Test?
From this article, under the Supreme Court section: "This remains the test applied by the Supreme Court in cases where an application of an otherwise valid law, is in question."

From the Brandenburg v. Ohio article: "The imminence element was a departure from earlier rulings. In Schenck v. United States, 249 U.S. 47 (1919), the Court had adopted a "clear and present danger" test that Whitney v. California had expanded to a bad tendency test: if speech has a "tendency" to cause sedition or lawlessness, it may constitutionally be prohibited. Dennis v. United States, a case dealing with prosecution of alleged Communists under the Smith Act for advocating the overthrow of the government, used the clear and present danger test while still upholding the defendants' convictions for acts that could not possibly have led to a speedy overthrow of the government. Brandenburg explicitly overruled the bad tendency test and made the time element of the clear and present danger test more defined and more rigorous."

I thought Brandenburg v. Ohio narrowed the "Clear and Present Danger" Test. --Db099221 12:40, 13 February 2007 (UTC)
 * So, doesn't Brandenburg v. Ohio "remain the test applied by the Supreme Court in cases where an application of an otherwise valid law, is in question"? --Db099221 12:42, 13 February 2007 (UTC)
 * There is debate and confusion about many aspects of First Amendment doctrine, especially the meaning of the test put forward in Schenck, but it does seem that the Court applies the clear-and-present-danger test when discussing application of a valid law to expressive behavior; Brandenburg has often been cited in various contexts, especially in the years when Holmes's formulation was out of favor, but it doesn't seem to alter that earlier test, which at least in Holmes view was fairly restrictive. I believe the ACLU nowadays argues clear and present danger in as-applied cases.Sheldon Novick 21:03, 4 July 2007 (UTC)

Schenck v. United States
An anonymous editor added to the discussion of Schenck a statement that it affirmed prison sentences of Yiddish-speakng socialists. That was actually the Abrams case, in which Holmes dissented on behalf of the defendants (and in Holmes's view they did not object to U.S. participation in World War, only to intervention against Russian revolution).Sheldon Novick 20:35, 4 July 2007 (UTC)

Holmes in The Military
Did Holmes enlist in the army, or was he commissioned into the army? It seems to me that he must have commissioned into the army, since he left the army as a captain. —Preceding unsigned comment added by 71.229.63.50 (talk) 01:02, 1 September 2007 (UTC)
 * He enlisted, then received commission. I have added this info to article. Sheldon Novick 17:45, 5 September 2007 (UTC)

The statement "Holmes was promoted to colonel, but never returned to the 20th Massachusetts because the unit had been decimated." seems alarming. I understood that decimation was an historical punishment by which one man in ten would be taken and killed 'pour encourager les autres'. Is there a source, please? Geoffrey BH 11:22, 20 March 2023 (UTC) — Preceding unsigned comment added by GeoffreyBH (talk • contribs)

WikiProject class rating
This article was automatically assessed because at least one WikiProject had rated the article as start, and the rating on other projects was brought up to start class. BetacommandBot 04:20, 10 November 2007 (UTC)

Family Tree?
I was wondering if there was a family tree of Holmes, as I am related to him, but am not sure exactly how. Roxy 19:43, 24 February 2008 (UTC)

"Supreme Court" Section
The following sentence is so confusing that I can't unravel it. The sentence has either got redundancies in it or it is way too contorted for my little brain! Here it is:

However, Holmes wrote the opinion of the Court in the Pennsylvania Coal v. Mahon case which inaugurated regulatory takings jurisprudence in holding a Pennsylvania regulatory statute constituted a taking of private property.

Can the original writer unravel this, please? Mschneblin (talk) 00:59, 6 October 2008 (UTC)

Questionable Claim
This sentence about Holmes' The Common Law is very judgemental and highly suspect:

"This remains the only important work of American jurisprudence written by a practicing attorney."

The book was written in 1881. It may be the best, or most influential work of American Jurisprudence written by a practicing attorney, but surely not the ONLY important work written by a practicing authority. What is the source/authority for this statement?

Ergonaut2001 (talk) 14:14, 29 October 2008 (UTC)

Oliver Wendell Douglas and Oliver Wendell Jones
Are these two fictional characters relevant to this article? The other works listed in this section actually purport to portray Justice Holmes, but in the case of Douglas and Jones, the only connection is a similar name. Peter Chastain (talk) 20:43, 13 April 2009 (UTC)


 * No objections having been raised, I have now deleted both of those allusions. Peter Chastain (talk) 18:37, 21 July 2009 (UTC)

Holmes, legal positivism vs. legal realism
From the article: "Holmes emerged from the war convinced that government and laws were founded on violence, a belief that he later developed into a positivist view of law and a rejection of romanticism and natural rights theory."

However after clicking on the legal positivism page, the article claims that Holmes was not a positivist but rather a realist: "Legal positivism should be distinguished from legal realism and such legal realists as Oliver Wendell Holmes, Jr."

I am editing the page to correct this difference (particularly when it appears to be not important to the general scope of the page). —Preceding unsigned comment added by Reaper Man (talk • contribs) 14:49, 17 May 2009 (UTC)

Change in tone
I think there needs to be some discussion before we make a radical shift in the tone of the lead as has been attempted. The eugenics quote simply doesn't belong there, in my opinion. If you want to include it, feel free to make your case here. The other part about the Kritocracy is less important to me, but if anyone has strong feelings one way or the other, feel free to say so here. Recognizance (talk) 20:49, 24 July 2009 (UTC)
 * I've reverted pending further discussion. I agree that the current lead is a bit too flowery, but the new one slants the article far too much in the other direction. There's a balance to be found, somewhere. --MZMcBride (talk) 20:58, 24 July 2009 (UTC)


 * I strongly feel that the statement that he "clearly moved the United States from a rights based judicial system to a Benthamistic Kritocracy" does not belong in the introductory paragraph. That proposition is at most debatable, not "clear." If anyone really believes this, let's present that debate in a section of the article. For similar reasons, I do not think the eugenics quote belongs in the lead paragraph. I would favor a brief reference to Buck v Bell there, and a bigger discussion of how this relates to Holmes's view of individual rights somewhere in the body of the article.Peter Chastain (talk) 21:29, 24 July 2009 (UTC)


 * I like the way Recognizance put it in the 20:44 24 July edit: "Despite what some see as his disregard for individual rights..." (subsequently deleted). That raises the issue but stays NPOV.Peter Chastain (talk) 23:26, 24 July 2009 (UTC)


 * That works. I had asked MZM's opinion because I'm not familiar with Holmes outside discussions of clear and present danger and had actually never heard of "Kritocracy" prior to its insertion here. Recognizance (talk) 19:54, 25 July 2009 (UTC)

For the record, the user in question left a message at User talk:TomasBat - not sure why he/she left it there instead of here. In any case, it's become readily apparent that they don't intend to cooperate and will probably have to be blocked. Recognizance (talk) 19:50, 3 August 2009 (UTC)

Agree with User:Recognizance. The kritocracy argument is not, as far as I can tell, a part of contemporary mainstream thought. If the user doesn't wish to add his criticism to the criticism section, instead of substansively subverting the article, further action should be taken. 159.105.77.45 (talk) 14:01, 6 August 2009 (UTC)

Civil War Service
The article currently says that Holmes was wounded in three Civil War battles: Ball's Bluff, Antietam, and Fredericksburg. However, most online sources give the three battles as Ball's Bluff, Antietam, and Chancellorsville. Indeed, the Fredericksburg sites seem to point back to Wikipedia. I do not have a book or biography on Holmes, but perhaps editors can find a way to determine the third battle he was wounded in? 16 July 2012 — Preceding unsigned comment added by 74.193.32.214 (talk) 02:02, 17 July 2012 (UTC)

Published works
An article section and a list with appropriate links of published works would be a good addition. List of works Just a thought. This is more or less common in Wikipedia articles. 7&amp;6=thirteen (☎) 15:52, 28 March 2014 (UTC)

Mistake in critique of formalism section?
Holmes argued that the evolving common law standard was that liability would fall upon a person whose conduct reflected prudence of a "reasonable man."

Should this be didn't reflect prudence? — Preceding unsigned comment added by Not Warren Buffett (talk • contribs) 20:47, 15 October 2019 (UTC)

quotation marks
In fn. 48, I can't figure out how to get rid of the quotation marks around the book title (which I put in italics). I also can't figure out how to get rid of the date retrieved, which hardly seems necessary. I clicked on the link today, so should I update the date retrieved? That would seem silly.Maurice Magnus (talk) 11:38, 29 April 2021 (UTC)

Dissents
The section, Reputation as a Dissenter states, "Although Holmes did not dissent frequently — during his 29 years on the U.S. Supreme Court, he wrote only 72 separate opinions, whereas he penned 852 majority opinions." A separate opinion may be a concurrence or a dissent, so this sentence should indicate the number of dissents Holmes wrote for the U.S. Supreme Court.Maurice Magnus (talk) 14:53, 19 August 2021 (UTC)

How do I insert brackets without moving a link symbol?
My edit of 01:40, 13 May 2022 provided a requested citation, with a link. I was unable to place brackets anywhere because it moved the link symbol (the box with the arrow) to the wrong place. I tried to change the first word, "the" to "[T]he" and to place double brackets around "Frankfurter" to change it to "Frankfurter" and to place double brackets around "Nardone v. United States."Maurice Magnus (talk) 01:48, 13 May 2022 (UTC)

Poetry Information - Source Incorrect, Information Wrong
Citation 10 links to a book by Lewis W Townsend about the 'poetry' of Oliver Wendell Holmes. The source, however, talks about Oliver Wendell Holmes Sr., who was in fact a poet, and not Jr. The wording (at least) of the sentence makes it seem as though Oliver Wendell Holmes Jr. was a poet. But there does not seem to be any mention of Oliver Wendell Holmes Jr. as a poet in this source or indeed any other. This appears to be a misattribution of information, and should be corrected if this information is indeed false.GrexJr (talk) 01:08, 27 February 2024 (UTC)


 * @GrexJr As it happens, I have this page on my watchlist. Do you have a copy of the book on hand? Just trying to get a feel for how much of the preceding sentences are sourced to it and thus might be wrong. CaptainEek Edits Ho Cap'n!⚓ 06:43, 27 February 2024 (UTC)
 * Sure thing! The whole book appears to be available on the archive it's sourced to at this link:
 * https://archive.org/details/oliverwendellhol00town/page/86/mode/2up
 * The sentence cites page 87, and that should be the open page with that link. The whole book does appear to be available however. Let me know if you'd like anything else!
 * P.S. Interestingly enough later references to OWH Jr.'s poetry are cited to another book by Sheldon Novick, but unfortunately I could not get my hands on that reference. GrexJr (talk) 21:25, 27 February 2024 (UTC)
 * @GrexJr You're free to just remove or tweak the sentences yourself :) WP:BE BOLD! CaptainEek Edits Ho Cap'n!⚓ 23:29, 27 February 2024 (UTC)
 * Will do! I will get on that. There is another book cited on another source that has seemingly similar information, so I will take a look at those as well at some point in the near future to see if this information can be better cited. Thank you for your assistance! GrexJr (talk) 00:56, 29 February 2024 (UTC)