Literature Network » Oliver Wendell Holmes

Predicting future Supreme Court decisions on race and the Fourth Amendment

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From: Texas Forum on Civil Liberties & Civil Rights
Date: 20021001
Author:Norkin, Walter M

Introduction

Oliver Wendell Holmes's theory of legal realism, which contends that written law is patently incomplete and compels wide judicial discretion in interpretation and application,1 has been called the "What the Judge Ate for Breakfast" theory of judicial decision-making.2 By emphasizing the large amount of discretion necessarily afforded to judges, Holmes's theory suggests that cases are decided based on judges' fancy. Indeed, when President Franklin Delano Roosevelt tried to pack the Supreme Court (of which Holmes was a member) in "[t]he defensible intent to end the Court's ...

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