The Daily

The Felt Necessities of Time (#OWH)

Judge Katanji Brown Jackson, prematurely referred to as KBJ here, is being feted at Congress this month after her SCOTUS nomination. Much is made of her being the first black woman nominated. But she would also be the first public defender appointed in a generation or two. At her press announcement, she name-checked my favorite SCOTUS Justice, Oliver Wendell Holmes.

We present. The Oliver Wendell Holmes Experience.

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

Justice Holmes spent the 1880’s teaching at Harvard and ruling on the bench of the Supreme Court of Massachusetts before being appointed to the United States Supreme Court by President Teddy Roosevelt in 1902.

From that perch, he put into effect his fundamentally unstoppable understanding of American tort law. And experience became the life of the law.

The Thompson Law Firm