Legal Review. Issue 2

Author: Su Li
Publisher:
Publish Date: 2004-05-01
Features: The style of judicial opinions. Richard A. Posner's "On the Style of Judicial Opinions" is translated by Su Li. I will explore the style of judicial writing through the famous judicial opinions of our renowned judges, which is Holmes's dissent in the case of. The case involved the invalidation of a state statute limiting the working hours of bakeries on the grounds that it deprived freedom without due process of law. In Holmes's dissent, the famous line—also one of the most famous in law and cherished by those who find the majority opinion reasonable as public policy but not as law, as well as by those advocating regulation of employment relations—is: "The Fourteenth Amendment does not establish Herbert Spencer's Social Statics." This proposition is unsupported by evidence; and it is even possible that even if you agree with it, you might still think the decision in the case is correct. Yet, these points do not seem to have weakened much the authority of this dissent, which has stood the test of over 80 years. The number of judicial opinions from this period is small, and a significant portion of them were written by Holmes. However, as David Currie demonstrates, Holmes's judicial opinions are often (and, as we will see in this example) lacking in rigorous reasoning. So where does the force of these opinions come from? Below is the full text of Holmes's dissent in the: I sincerely regret that I cannot agree with the decision in this case, and I regret that I have a duty to excerpt from Posner's "Law and Literature" (1988 edition).