Law Commons^™

Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer

Articles

Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …

James Wilson As The Architect Of The American Presidency, Christopher S. Yoo

All Faculty Scholarship

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment power, the …

Pining Away In The Midst Of Plenty: The Irony Of Rorty's Either/Or Philosophy, Susan Haack

Articles

No abstract provided.

Judge Posner’S Simple Law, Mitchell N. Berman

All Faculty Scholarship

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …

Pragmatism On The Shoulders Of Emerson: Oliver Wendell Holmes Jr.'S Jurisprudence As A Synthesis Of Emerson, Peirce, James, And Dewey, Allen P. Mendenhall

Allen Mendenhall

Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories …

Oliver Wendell Holmes Jr. Is The Use Of Calling Emerson A Pragmatist: A Brief And Belated Response To Stanley Cavell, Allen P. Mendenhall

Allen Mendenhall

This essay investigates the relationship between Ralph Waldo Emerson and Oliver Wendell Holmes, Jr. in the context of the common law. Holmes’s Emersonian writings, in particular his dissents, fall within the theoretical framework of agonism, which Harold Bloom refers to as a revisionary and Emersonian “program.” Agonism as a political and aesthetic theory maintains that sites of contestation can be productive rather than destructive; it suggests that confrontational relationships can be at once mutually offsetting and generative. Drawing from the Greek word for an athletic competition, agonism applied to rhetoric underscores the importance of mutuality to conflict: writers struggling against …

Pragmatic Rationality And Risk, Claire Oakes Finkelstein

All Faculty Scholarship

Pragmatic theories focus on whether agents fare better acting on the basis of a particular intention or plan, rather than whether this can be justified in terms of the expected utility associated with the plan. This article argues that, while attractive, pragmatic theories have difficulty vindicating the rationality of plans involving an element of risk. In “Assure and Threaten,” David Gauthier noticed this difficulty with respect to deterrent threats. This article argues that the same difficulty exists for assurances involving an element of risk. It then explores whether Pragmatists could solve the shortcomings of their approach by adopting the Chance …

Holmes And Dissent, Allen P. Mendenhall

Allen Mendenhall

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …

The Problem Of The Subject, Pierre Schlag

Pierre Schlag

No abstract provided.

Solving Problems Vs. Claiming Rights: The Pragmatist Challenge To Legal Liberalism, William H. Simon

William & Mary Law Review

Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and "new accountability" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past fifty years. That view, Legal Liberalism, …

Invisible Foundations: Science, Democracy, And Faith Among The Pragmatists, Patrick J. Deneen

Pragmatism, Law and Governmentality

Today science is almost universally regarded as an ally of democracy. Religion - once viewed by Tocqueville as the great support of democratic mores, in contrast to the materialism of then-contemporary atheists who threatened to undermine democratic commitments - is now viewed by many as antithetical to the openness and provisionality that marks both science and democracy. As framed by the neo-pragmatist Richard Rorty, religion is a "conversation-stopper," the very definition of anti-democratic, anti-scientific anti-pragmatism.

Whereas a pragmatic form of faith, notably "democratic faith," secures belief in an ever improving future, the "politics of skepticism" is reinforced by the initial …

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …