There is no book that catalogues and analyzes the Supreme Court opinions of Justice Oliver Wendell Holmes, Jr. from the perspective of his life experiences and philosophy. There is not even a book that collects in one source all of his opinions. Curious that, as he is the third most-cited Supreme Court Justice in history and had a profound effect on American jurisprudence. There is a yawning void in the scholarship although I am not remotely likely to fill it.
Holmes' life intellectual achievement was The Common Law, the first sentence of which is the most famous,
“The life of the law has not been logic, but experience."
Louis Menand wrote that by "experience" Holmes meant "culture", the culture of the time nested in the larger, longer culture. Whether personal experience or the wider culture, Holmes had plenty of both.
Experience as the soul of the law has malleability going for it. The culture changes, the law must change. It has going against it rootlessness, for if experience means culture why do we need nine lifetime appointees to tease out what the culture is saying it needs? Why don't we just decide law doctrine, or at least cases, by rigorous poll or referendum?
Holmes is the all-time award winner for the craft of "best jurisprudential sentence"; they were like headlines and Holmes reveled in attention. "The life of the law has not been logic, but experience" was his first widely-known example. It was a practice that was to carry over into his judicial writings. "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics" and "Three generations of imbeciles is enough" are from his Supreme Court opinions.
There is a limit to how much jurisprudence, or news, can be carried in a headline. Reliance on a catchy, simplistic sentence can stifle intellectual depth and almost always leads into intellectual shallows. It does over and again in Holmes' Supreme Court opinions. It leads him to breezily elide or dismiss precedent, to engage in argument rather than legal reasoning. In our times Holmes may well have introduced The Common Law with K.I.S.S., "Keep it Simple Stupid."
Hanley v Kansas City Southern Railway Co., 187 U.S. 617
Another economic case, you don't have to be Paul Krugman to see. Another interstate commerce case, very similar on the legal facts and issues of Otis v Parker. I will spare you and myself as many of the legal weeds as is prudent.
...as we shall explain.
The professor shall susplain to us ignoramuses.
...the distinction hardly is important...
We may as well add...
Because it is hardly important.
Holmes gets entangled in his headlines, as he did in Otis v Parker, declaring that "general propositions do not carry us far", before allowing them to carry him to the "narrower path" that he sought where he was more sure of his footing.
Suppose that the Indian Territory were a state, and should try to regulate such traffic, what would stop it?
Supposing a counterfactual is contra-indicated in judicial opinions. Also in rigorous, persuasive argument.
No one contends that the regulation could be split up... There can be but one rate, fixed by one authority...
But it would be more logical to allow a division according to the jurisdiction over the track than to declare that the subject for regulation is indivisible,
yet that the indivisibility does not depend upon the commerce's being under the authority of Congress,
but upon a fiction which attributes it wholly to Arkansas,
although that fiction is quite beyond the power of Arkansas to enforce.
That’s a lot of quicksand.
It is decided that navigation on the high seas between ports of the same state is subject to regulation by Congress [citation omitted] and is not subject to regulation by the state, Pacific Coast Steamship Co. v. Railroad Commissioners, 9 Sawyer 253, and, although it is argued that these decisions are not conclusive,
Still I will rely on the one that fits my purpose best, and quickest:
...the reason given by Mr. Justice Field for his decision in the last-cited case disposes equally of the case at bar.
There are some later state decisions contrary to those last cited.
But no matter.
...these decisions were made simply out of deference to conclusions drawn from Lehigh Valley Railroad Co. v. Pennsylvania, 145 U. S. 192, and we are of opinion that they carry their conclusions too far.
Be gone, Deference! WE WANT NARROW GROUND!
Whereas it is decided, as we have said, that, when a rate is established, it must be established as a whole.
Alrhough what you said a page before was,
it would be more logical to allow a division according to the jurisdiction over the track than to declare that the subject for regulation is indivisible…
The life of the law is experience, not logic.
We are of opinion that the language which we have quoted from Mr. Justice Field is correct, and that the decree of the circuit court should be affirmed.
Decree affirmed.