专八人文知识需知美国名人--奥利弗.温德尔.霍姆斯

专八人文知识需知的美国名人--奥利弗.温德尔.霍姆斯

　　英语专八人文知识涵盖的知识面较广，考生们需要平时多积累小常识，这样在专八考试中才能游刃有余，新东方在线整理了专八人文知识需知的美国名人系列知识点供考生们参考。

　　奥利弗•温德尔•霍姆斯(Oliver Wendell Holmes, Jr.，1841年3月8日-1935年3月6日)是美国诗人老奥利弗•温德尔•霍姆斯之子，他是美国著名法学家，美国最高法院大法官。

　　Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) wasan American jurist who served as an associate justice on theSupreme Court of the United States from 1902 to 1932. Notedfor his long service, his concise and pithy opinions, and hisdeference to the decisions of elected legislatures, he is one of themost widely cited United States Supreme Court justices in history, particularly for his "clear andpresent danger" majority opinion in the 1919 case of Schenck v. United States, and is one of themost influential American common-law judges.

　　Early life

　　Holmes was born in Boston, Massachusetts, the son of the prominent writer and physician OliverWendell Holmes, Sr. and abolitionist Amelia Lee Jackson. As a young man, Holmes loved literatureand supported the abolitionist movement that thrived in Boston society during the 1850s. Hegraduated from Harvard University in 1861, where he was elected to the Phi Beta Kappa honorsociety and was a brother of the Alpha Delta Phi.

　　Civil War

　　During his senior year of college, at the outset of the American Civil War, Holmes enlisted in thefourth battalion, Massachusetts militia, and then received a commission as first lieutenant in theTwentieth Regiment of Massachusetts Volunteer Infantry. He saw much action, from the PeninsulaCampaign to the Wilderness, suffering wounds at the Battle of Ball's Bluff, Antietam, andFredericksburg. Holmes particularly admired and was close to his fellow officer in the 20th Mass.,Henry Livermore Abbott. Holmes is said to have shouted at Lincoln to take cover during the Battleof Fort Stevens, although this is commonly regarded as apocryphal. [Note: In the biography"Justice Oliver Wendell Holmes: Law and the Inner Self" by Edward G. White, Justice Holmes isquoted as indicating that while he was at Fort Stevens on the day of President A. Lincoln's visit, hedenied that he made any remarks at all to the President.

　　State Judgeship

　　Oliver Wendell Holmes Jr. as a young man. After the war's conclusion, Holmes returned to Harvardto study law. He was admitted to the bar in 1866, and went into practice in Boston. He joined asmall firm, and married a childhood friend, Fanny Bowditch Dixwell. Their marriage lasted until herdeath on April 30, 1929. They never had children together. They did adopt and raise an orphanedcousin, Dorothy Upham. Mrs. Holmes was described as devoted, witty, wise, tactful, andperceptive. Whenever he could, Holmes visited London during the social season of spring andsummer. He formed his closest friendships with men and women there, and became one of thefounders of what was soon called the “sociological” school of jurisprudence in Great Britain, whichwould be followed a generation later by the “legal realist” school in America. Holmes practicedadmiralty law and commercial law in Boston for fifteen years. In 1870, Holmes became an editor ofthe American Law Review, edited a new edition of Kent's Commentaries on American Law in 1873,and published numerous articles on the common law. In 1881, he published the first edition of hiswell-regarded book The Common Law, in which he summarized the views developed in thepreceding years. In the book, Holmes sets forth his view that the only source of law, properlyspeaking, is a judicial decision. Judges decide cases on the facts, and then write opinions afterwardpresenting a rationale for their decision. The true basis of the decision is often an "inarticulate majorpremise" outside the law. A judge is obliged to choose between contending legal theories, and thetrue basis of his decision is necessarily drawn from outside the law. These views endeared Holmesto the later advocates of legal realism and made him one of the early founders of law andeconomics jurisprudence. Holmes was considered for a federal court judgeship in 1878 byPresident Rutherford B. Hayes, but Massachusetts Senator George

　　Frisbie Hoar convinced Hayes to nominate another candidate. In 1882, Holmes became both aprofessor at Harvard Law School and then a justice of the Supreme Judicial Court ofMassachusetts, resigning from the law school shortly after his appointment. He succeeded JusticeHorace Gray, whom Holmes coincidentally would replace once again when Gray retired from theU.S. Supreme Court in 1902. In 1899, Holmes was appointed Chief Justice of the MassachusettsSupreme Judicial Court. During his service on the Massachusetts court, Holmes continued todevelop and apply his views of the common law, usually following precedent faithfully. He issuedfew constitutional opinions in these years, but carefully developed the principles of free expressionas a common-law doctrine. He departed from precedent to recognize workers' right to organizetrade unions as long as no violence or coercion was involved, stating in his opinions thatfundamental fairness required that workers be allowed to combine to compete on an equal footingwith employers.

　　Retirement, death, honors and legacy

　　Holmes served on the court until January 12, 1932, when his brethren on the court, citing hisadvanced age, suggested that the time had come for him to step down. By that time, at 90 yearsof age, he was the oldest justice to serve in the court's history. Three years later, Holmes died ofpneumonia in Washington, D.C. in 1935, two days short of his 94th birthday. In his will, Holmes lefthis residuary estate to the United States government (he had earlier said that "Taxes are what wepay for civilized society" in Compania General De Tabacos De Filipinas vs. Collector of InternalRevenue, 275 U.S. 87, 100 (1927).) He was buried in Arlington National Cemetery, and iscommonly recognized as one of the greatest justices of the U.S. Supreme Court.

　　Holmes's papers, donated to Harvard Law School, were kept closed for many years after his death,a circumstance that gave rise to numerous speculative and fictionalized accounts of his life.Catherine Drinker Bowen's fictionalized biography "Yankee from Olympus" was a long-timebestseller, and the 1951 Hollywood motion picture The Magnificent Yankee was based on a highlyfictionalized play about Holmes's life. Since the opening of the extensive Holmes papers in the1980s, however, there has been a series of more accurate biographies and scholarly monographs.

　　主要思想

　　霍姆斯的哲学观受到了社会达尔文主义和实用主义的影响，这在他生前和死后都遭到了批评。霍姆斯在1927年的 Buck 诉 Bell案中，认为州政府强制给智障者绝育并不违反联邦法律，他声称：“痴呆人有三代就够了。”这是霍姆斯在判例中奉行社会达尔文主义的著名例子。霍姆斯在对待种族和贫困问题上的个人态度上有精英主义之嫌，这也遭到了批评，他的好友路易斯•布兰戴斯曾评论道：霍姆斯“对损害大众的罪恶一无所知”。

　　霍姆斯反对道德理论和“自然权利论，而信奉道德相对主义，这使得他强烈支持第一修正案的言论自由权，尤其是密尔的观点市场理论。他的名言是;第一修正案不会保护一个“在剧院里妄称失火而招致恐慌”的人。他还创制了“清楚而即刻的危险”标准，已确定政府对言论的限制是否合宪，该标准源于1919年的Schenk 诉合众国案，该案在最高法院言论自由判例中非常著名。霍姆斯相信，没有绝对的真理，因此言论自由对自由交流观点而言至关重要。

　　对道德相对主义的支持，也使得霍姆斯反对“实体性正当程序(substantive due process)”判解原则，不认为美国宪法对政治过程强加了实体性限制。 尽管他对做出了一个著名的例外，即令他“作呕”的政府行为。该“致呕”检测法成为了后来费利克斯•弗兰克福特“良心震撼”论的依据，并在当前在一些实体性正当程序案例中成为主导原则。霍姆斯的司法哲学在美国法律现实主义中起到了很大作用，该学派强调现实世界对判决的影响，而不强调法律形式主义和理论。

　　霍姆斯受到当时像弗兰克福特和布兰戴斯等自由派人士的推崇，被认为是对最高法院“合同自由”判解原则的强有力的批评者。该院则经常被用来判决社会性立法违宪，其中最著名的是1905年的Lochner 诉纽约州案。霍姆斯在该案中书写了异议意见，他认为：“宪法并不意图支持某个特定的经济理论”。这是最高法院判例史中最广为引用的话之一。

　　代表作品

　　《普通法》(The Common Law)，1881

　　“法律之路(The Path of the Law)”，载于《哈佛法律评论》第10卷，1897年。

专四专八：历年真题免费领

专四专八：精选好课 暖心助学