The Anti-Lochner

With these words (and a few others of course!):

Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the questions whether statutes embodying them conflict with the Constitution of the United States. Lochner v. New York, 198 U.S. 45 (1905).

Holmes provided the spark which would slowly ignite and cause the legal realist movement. It was a dissent of course. Let's not forget that.

But a lot about his dissent has been overlooked. Especially the apparent role played by functionalism in the jurisprudence of Holmes. Compare the above quote with the following...

The logical stickler for justice always seems pedantic and mechanical to the man who goes by tact and the particular instance, and who usually makes a poor show at argument. Sometimes the abstract conceiver’s way is better, sometimes that of the man of instinct. But just as in our study of reasoning we found it impossible to lay down any mark whereby to distinguish right conception of a concrete case from confusion, so here we can give no general rule for deciding when it is morally useful to treat a concrete case as sui generis, and when to lump with others in an abstract class… Suffice it that these judgments express inner harmonies and discords between objects of thought; and that whilst outer cohesions frequently repeated will often seem harmonious, all harmonies are not thus engendered… [emphasis in original.] [William James, The Principles of Psychology, (Hutchins, ed., reprinted 1952) (1890)]

Here, James analyzes moral judgment through the lens of then nascent functionalist psychology. Where Holmes saw such coincidence as accidental, James saw it as arbitrary, and vice versa throughout both texts. For Holmes the slogan is: "every opinion tends to become law." For James, the similar slogan: "A thing is important if anyone think it important."

What does this mean? Well, it might mean that much of the jurisprudence in the 20th century of America could well parallel the same movements experienced in contemporary psychology . It might also mean we can probably predict how the law will continue to unfold in the next century, as we look to psychological developments as bellweathers.

But at the end of the day, it probably definitely means that the impact of Williams James on the world was bigger than first thought. He seems to have been a little more than just a friend of Justice Holmes.