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About the Author:
Oliver Wendell Holmes, Jr. -- who grew up in the shadow of his famous father, the great doctor and writer Oliver Wendell Holmes, Sr. -- set out to make his mark on the world by the age of forty. His first notoriety among the legal community came when he edited the monumental work of legal scholarship Kent’s Commentaries. Just shy of his fortieth birthday, he delivered The Common Law to very positive reviews. From that point, his career was meteoric and included a near three-decade tenure on the Supreme Court of the United States.
|Lecture I||Early forms of liability|
|Lecture II||The criminal law|
|Lecture III||Torts - trespass and negligence|
|Lecture IV||Fraud, malice, and intent - the theory of torts|
|Lecture V||The bailee at common law|
|Lecture VII||Contract - I. history|
|Lecture VIII||Contract - II. elements|
|Lecture IX||Contract - III. void and voidable|
|Lecture X||Successions - I. after death - II. Inter Vivos|
|Lecture XI||Successions - II. Inter Vivos|
The standards of law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does no attempt to see men as God sees them… But a certain average of conduct… is necessary to the general welfare.He goes on to describe, with clarity that is valuable to any lawyer, judge, or student today, certain underlying standards of law that resonate powerfully in the twenty-first century - an era where individual plaintiffs try to shirk responsibility for their personal actions and corporate insiders manipulate the truth to protect their empires. For example, Holmes' discussion of the person of "ordinary prudence" reminds us that this standard is still our last bastion against the tendency of litigants to deny personal culpability as they seek damages for spilling their coffee, tripping over their own toddler in a hardware store, or falling off a ladder that was put on a pile of thawing fertilizer -- to cite a few recent cases. Holmes admonishes us that the law should punish only those who have failed to meet some obvious, "fixed" standard of ordinary prudence. The rest of us should reckon with consequences of our own faults. If we are to control the litigation crisis in our country, Holmes' standard must remain the standard in our world today.
"When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory… [S]crutiny and revision are justified."He reiterated this point in his famous speech dedicating a building at Boston University in 1897:
It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished since, and the rule simply persists from blind imitation of the past.In The Common Law, this principle is most obvious in Holmes' discussion of the development of the form of action of "trespass on the case" to deal with unlawful takings that were beyond those of simple trespass against land, but similar such examples appear throughout the work. Often Holmes attributes lingering appendix-like formalities to the strong roots of our law not only in old English forms of action, but also in Roman and Germanic law. Holmes revels in the study and analysis of other legal systems, but he admonishes us not to hold on to the remnants of these systems too tightly.
Posted April 29, 2009
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Posted October 27, 2008
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