02 May 2014


Legal pragmatism, Jim, but not as we know it?

'Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability' by Edmund Ursin in (2013) 50 San Diego Law Review comments that
Enterprise liability is a term associated with the tort lawmaking of the liberal “Traynor era” California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This manuscript examines the evolution of each of these theoretical movements from Holmes’s great 1897 essay, “The Path of the Law,” to the present day. Its focus is on the great judges and scholars whose views have shaped our own: Holmes, Cardozo, the Legal Realists Leon Green and Karl Llewellyn, Traynor, and Posner. 
Stated simply, the shared jurisprudential view of these great judges and scholars is that in our system judges are legislators as well as adjudicators — and policy plays a role in their lawmaking. In the common law subjects, in fact, judges are the primacy lawmakers. In constitutional adjudication they are also lawmakers but lawmakers aware of the general need for deference to other branches. No fancy formulas such as “neutral principle “or “original meaning” can capture this role. Indeed, the leading academic theorists of the past century — and today — have been out of touch with the reality of judicial lawmaking as it has been expressly articulated by these great judge. We also see in the works of these judges and scholars the origins of the enterprise liability doctrines that the pragmatic Traynor era court of the 1960s and 1970s, would adopt, including the doctrine of strict products liability and expansive developments within the negligence system.
Australian readers might gain more value from Richard Posner, ‘What Has Pragmatism To Offer Law?’ (1990) 63 Southern California Law Review 1653; Alfonso Morales (ed) Renascent Pragmatism: Studies in Law and Social Science (Ashgate, 2003); Margaret Radin, ‘The Pragmatist and the Feminist’ (1990) 63 Southern California Law Review 1699; Michael Sullivan, Legal Pragmatism: Community, Rights, and Democracy (Indiana University Press, 2007); Thomas Grey ‘Holmes and Legal Pragmatism’ (1989) 41 Stanford Law Review 787; Ronald Dworkin, ‘Pragmatism, Right Answers and True Banality’ in Michael Brint and William Weaver (eds) Pragmatism in Law and Society (Westview Press, 1990) 359; Frederic Kellogg, ‘American Pragmatism and European Social Theory: Holmes, Durkheim, Scheler, and the Sociology of Legal Knowledge’ (2012) IV(1) European Journal of Pragmatism and American Philosophy 107;  Brian Tamanaha, ‘Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction’ (1996) 41 American Journal of Jurisprudence 315; Susan Haack, ‘On Legal Pragmatism: Where Does ‘The Path of the Law’ Lead Us?’ (2012) 3(1) Pragmatism Today 8; John Diggins, The Promise of Pragmatism: Modernism and the Crisis of Knowledge and Authority (University of Chicago Press, 1995); and R George Wright, ‘The Consequences of Contemporary Legal Relativism’ (1990-91) 22 University of Toledo Law Review 73.