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"The primary difference between Blackstone and Holmes is that the former embraces a common-law paradigm consisting of fixed rules rooted in ancient custom whereas the latter embraces a common-law paradigm consisting of fluid rules responsive to changing social conditions."
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That may have been expecting a little too much! But I think he expected a few judges within the Emersonian tradition to be doing most of the work. journals.openedition.org/ejpap/411
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This is awesome, but did you HAVE to make it such a tangled mess of close reads and quotes from many sources? 🤬 I'm trying and failing to follow the overall contours of your threadthulhu on this topic. Where do you suggest I start? I'm replying to the tweet that caught my eye.
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Same...there's not much work that addresses it directly, or in a concrete, big picture way. That's why I make so many threads gesturing at it and trying to document the connections. You have to have some familiarity with a bunch of obscure topics to see how it all fits together.
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One piece is that, to put it simplistically, the US legal and governing infrastructure was designed to replicate the Massachusetts model, to the extent possible, and to run the same "operating system." The interpretive tradition is the secularized culture of MA Puritan elites.
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So it wasn't really a battle between the two. The interpretive tradition has never been organic to most of the country, and once modernization hit, the only elites who grasped it at high level were those who went to Harvard law.
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Kind of. I go back and forth on how to look at it. In some ways, we've actually never had a functional legal system at the national level. But in other ways, we've periodically continued to construct it in line with the original model. I can't believe the resilience of it.
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