Holmes and "facts"
SLevinson at MAIL.LAW.UTEXAS.EDU
Mon Mar 12 10:43:39 PST 2001
The one thing we can say with absolute certainty about Holmes is that he
had little if any regard for the actual facts of cases. This, I take it,
is at the heart of the discussion of Buck v. Bell, what Holmes knew and
when he knew it. When he told Brandeis "I hate facts," he wasn't kidding,
because becoming aware about facts took time; it forces one to read a lot
of dull stuff, the kind of thing that Brandeis seemingly had endless
patience for. One of the opinions of Holmes I especially detest is Debs v.
US, because a reader of the opinion will literally get nary a clue who
Eugene Victor Debs was. He is never named and, certainly, never described.
No student, unless told by the professor, would know that it was the
equivalent of jailing, say, Ralph Nader because the authorities were afraid
that he might be having too much influence on impressionable minds.
But, of course, one can argue that the essence of a certain kind of legal
education is to promote disdain for facts and replace it with the touching
belief that general principles can indeed be relied on to decide almost any
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