Title

At War with the Eclectics: Mapping Pragmatism in Contemporary Legal Analysis

Abstract

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, and in so doing identifies three major camps of legal pragmatists: (1) eclectics, as represented by Thomas Grey and Daniel Farber, (2) economists, as represented by Richard Posner, and (3) experimentalists, as represented by William Simon, Charles Sabel, and Michael Dorf. With map in hand, it is hoped that instead of clamoring to the call of legal pragmatism, legal academics and practitioners will take greater caution both in their embrace of the pragmatist method, as well as in their carefree use of the word. This hope grounds the second and more normative goal of the article, and that is to make some trouble for legal pragmatism by not only pointing to its sectarianism, but also by querying its usefulness. Two of the lesser critiques target first the wholesale lack of predictive power latent in the eclectic approach, and second, the counter-intuitive relationship between eclecticism and neo-formalism. The thrust of the primary criticism is that legal pragmatism, in each of its manifestations, tends to either mask or simply murder the promise of an enriched and empowered philosophical pragmatism. As a consequence, the philosophical muscle latent in the pragmatist method is lost on the law, barring access to a truly “pragmatist” moment of legal decision.

Disciplines

Jurisprudence | Law and Economics | Legal History | Legal Writing and Research | Public Law and Legal Theory | Social Welfare Law

Date of this Version

February 2007