Who's a modern judicial pragmatist?

December 1, 2005 6:18 AM

What modern jurists could be considered the heirs of the pragmatism of Benjamin Cardozo and Karl Llewellyn?

I'm reading Posner now to get a better grasp on the "Law and Economics" perspective. However utilitarian moral relativism (even Posners qualified version) has to many holes for my tastes. I need to find the modern Kantian jurists and work my way to the middle between conceptual Duty and callous consequentialisim.

posted by BeerGrin to law & government (7 comments total)

Well, the pre-eminent modern pragmatist jurist is Judge Posner. Justice Breyer is usually considered to be in the same category.
posted by willbaude at 6:43 AM on December 1, 2005

Speaking about academics, rather than jurists, you might look at Daniel Farber, Thomas Grey, and Margaret Radin. These two articles have decent bibliographies that might make good starting points. Thomas Grey, for example, published a paper in 2003 called Judicial Review and Legal Pragmatism.
posted by monju_bosatsu at 7:16 AM on December 1, 2005

"Well, the pre-eminent modern pragmatist jurist is Judge Posner . . . "
posted by willbaude

Willbaude, Judge Posner is really amazing and I like many of his decisions.

However, the law and economics school is very much a defined subset of pragmatism.

In Posner's introduction to his book "overcoming Law" he identifies areas of public and legal conflict that the tools and language of economics cannot properly address.

My current hypothesis is that there are levels of decision making where either Consequentialist pragmatism or Duty Analysis pragmatism must be chosen. I *think* these situations may be identifiable, and I *think* that such an identification or decision making criteria would be a wonderful tool for modern jurisprudence.

Of course, this puts rationalist and empirical schools eye to eye. Blending the two is not a proposition many academics would accept.
posted by BeerGrin at 7:46 AM on December 1, 2005

The only other justice I hear mentioned in the same breath as Posner is Easterbrook, and while I have read many opinions by both I can't tell you their exactly judicial philosophy (I'm too busy looking for the holding).
posted by falconred at 7:48 AM on December 1, 2005

Falconred: Easterbrook is in no way, shape, or form, a judicial pragmatist. He's one of the foremost judicial formalists on the bench.

BeerGrin: Judge Posner as a jurist is not really a law-and-economist so much as a generalized pragmatist, and he really is at the forefront of the field. Have you read The Political Court, his Harvard article published last month? If not. it's much different and more concrete than his other academic work and reinforces what I'm saying here.
posted by willbaude at 8:32 AM on December 1, 2005

Will Baude,

Thanks for the link. I'll be reading alor more Posner after my exams are done. (Prolific is not the word for the man.)
posted by BeerGrin at 10:15 AM on December 1, 2005

(Prolific is not the word for the man.)

No kidding! I used to work for him, and I swear that he wrote articles faster than I could read them.
posted by willbaude at 2:27 PM on December 1, 2005