The thrice-wounded soldier who taught America that law grows from experience
Oliver Wendell Holmes Jr. was shot at Ball's Bluff, Antietam and Chancellorsville before he ever opened a law book. He went on to argue that judges follow the needs of their time more than pure logic, and he stayed on the Supreme Court until he was 90, still the oldest justice ever.
Holmes was born in Boston in 1841, son of the writer and physician Oliver Wendell Holmes Sr., and grew up among Emerson, the transcendentalists and the James family; William and Henry James became lifelong friends. At Harvard he was a committed abolitionist and wrote philosophical essays, including an attack on Plato that he showed to Emerson, who warned him that anyone who strikes at a king had better finish the job. He graduated in 1861 and joined the Union army as the Civil War began.
In the 20th Massachusetts he fought in the Peninsula Campaign and the Wilderness and survived near-fatal dysentery as well as his three wounds. Promoted to lieutenant colonel, he declined command of the regiment; his close friend Henry Livermore Abbott took it instead and was later killed. After serving on the staff of General Horatio Wright, he left the army in July 1864. A famous tale has him shouting at Lincoln to get down at Fort Stevens, but it is widely thought apocryphal, and Holmes himself was unsure who gave the warning.
His father, as he put it, kicked him into the law. He took a Harvard law degree in 1866, practised admiralty and commercial law in Boston for fifteen years, and turned his study into lectures published in 1881 as The Common Law, never out of print since. Its central claim was that rules come less from syllogisms than from the felt necessities of the era, from prevailing moral and political theories and even from judges' shared prejudices. Liability, he argued, should rest on external standards of what a prudent person would foresee, not on anyone's private state of mind.
Theodore Roosevelt put him on the Supreme Court in 1902. In 1919 he wrote the clear and present danger test, then months later dissented in Abrams, casting truth as whatever wins out in open competition among ideas. The University of Chicago Law Review ranks him the sixth most cited American legal scholar.
Source: Oliver Wendell Holmes Jr.
