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Does current disenchantment with rehabilitation and the movement toward determinate sentencing signal a return to “retribution”? To the contrary, a close analysis of the program and philosophy of determinate sentencing reveals a fundamental break with the retributive tradition of punishment according to generic categories of conduct. In an evolutionary development that can be traced through the classical and positivist reform movements. punishment has gradually shifted from a focus upon vengeonce and expiation toward individualized consideration of factors relevant to fairness. The thrust of the new movement toward regularizing the assessment of factors in aggravation or mitigation, with particular emphasis on harm and culpability, must be viewed in an evolutionary perspective.

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Oliver Wendell Holmes, Jr., is considered by many to be the most influential American jurist. The voluminous literature devoted to his writings and legal thought, however, is diverse and inconsistent. In this study, which was originally published in 2007, Frederic R. Kellogg follows Holmes's intellectual path from his early writings through his judicial career. He offers a fresh perspective that addresses the views of Holmes's leading critics and explains his relevance to the controversy over judicial activism and restraint. Holmes is shown to be an original legal theorist who reconceived common law as a theory of social inquiry and who applied his insights to constitutional law. From his empirical and naturalist perspective on law, with its roots in American pragmatism, emerged Holmes's distinctive judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical legal positivism and contrasts him with a range of thinkers.

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