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Famous dissenting judgment of Holmes J. in the US Supreme Court.
…From what source do these new rights come? The earliest case relies upon ‘the analogies of the municipal law’ (The Edith Godden, 23 Fed. 43, 46),-sufficient evidence of the obvious pattern, but inadequate for the specific origin. I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say,
‘I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court.’
No more could a judge, exercising the limited jurisdiction of admiralty, say,
‘I think well of the common-law rules of master and servant, and propose to introduce them here en bloc.’
Certainly he could not in that way enlarge the exclusive jurisdiction of the district courts and cut down the power of the states. If admiralty adopts common-law rules without an act of Congress, it cannot extend the maritime law as understood by the Constitution. It must take the rights of the parties from a different authority, just as it does when it enforces a lien created by a state. The only authority available is the common law or statutes of a state…
The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact. It always is the law of some state, and if the district courts adopt the common law of torts, as they have shown a tendency to do, they thereby assume that a law not of maritime origin, and deriving its authority in that territory only from some particular state of this Union, also governs maritime torts in that territory,-and if the common law, the statute law has at least equal force, as the discussion in The Osceola assumes. On the other hand, the refusal of the district courts to give remedies coextensive with the common law would prove no more than that they regarded their jurisdiction as limited by the ancient lines,-not that they doubted that the common law might and would be enforced in the courts of the states as it always has been.’
You can find this case on Westlaw. It is no longer good law.
[Edited and formatted for ease of reading].