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1
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0004082761
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Harvard Univ. Press, briefer version 1948
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Letter from Oliver Wendell Holmes, Jr. to William James (Apr. 19, 1868), quoted in RALPH BARTON PERRY, THE THOUGHT AND CHARACTER OF WILLIAM JAMES 92-93 (Harvard Univ. Press, briefer version 1948) (1935).
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(1935)
The Thought and Character of William James
, pp. 92-93
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Perry, R.B.1
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2
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0042933239
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note
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The use of the term "Romanticism" in this Article is discussed in Part III.A. Briefly, the term "Romantic" is used here to denote the counter-Enlightenment ideas about human nature present in the work of a wide and varied group of writers, critics and philosophers across France, Germany and England during the late eighteenth and early nineteenth centuries. As explained below, Romantic psychology stressed the powers of intuition and imagination, subjective experience, psychic conflict, irrationality, nature and inner transcendence. See infra notes 283-95 and accompanying text. This Article assesses the place of Romantic ideas about human nature in Holmes's jurisprudential work. The focus here is on his early theoretical writings, speeches, and correspondence, and not on his later decisions as a Supreme Court Justice. Although it is my belief that Holmes's Romantic psychology played a role in his later decisions, including his post-World War I First Amendment opinions, I do not develop that thesis here. For an example of a Holmes opinion that uses language reflecting a Romantic view of the unconscious, see Chicago B. & Q. Ry. Co. v. Babcock, 204 U.S. 585, 598 (1907) (stating that the reasoning of an administrative body expresses "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions . . . which may lie beneath consciousness without losing their worth").
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3
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0001417422
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The path of the law
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hereinafter The Path of the Law, reprinted in 3 THE COLLECTED WORKS OF JUSTICE HOLMES 391, 392 (Sheldon M. Novick ed., 1995) [hereinafter COLLECTED WORKS] ("You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law.")
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Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897) [hereinafter The Path of the Law], reprinted in 3 THE COLLECTED WORKS OF JUSTICE HOLMES 391, 392 (Sheldon M. Novick ed., 1995) [hereinafter COLLECTED WORKS] ("You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law.").
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(1897)
Harv. L. Rev.
, vol.10
, pp. 457
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Holmes O.W., Jr.1
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4
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0041430039
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See, e.g., id. at 460-61 ("The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.")
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See, e.g., id. at 460-61 ("The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.").
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