Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism

By Simon, William H. | William and Mary Law Review, October 2004 | Go to article overview

Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism


Simon, William H., William and 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, is less a creature of academic theory than an implicit popular jurisprudence of practicing lawyers. It consists of a cluster of ideas associated with the Warren Court, the ACLU, the NAACP Legal Defense Fund, Ralph Nader, and the legal aid and public defender movements. This Article seeks to reconsider Legal Liberalism in the light of the Pragmatist approach and to offer a tentative appraisal of the newcomer. It begins by explicating the sometimes tacit premises of Legal Liberalism and exploring its shortcomings. It then introduces the contrasting premises of the Pragmatist approach as they appear in a variety of recent works of legal scholarship. It illustrates the Pragmatist approach with a discussion of two case studies--one of drug courts and one of "second generation" employment discrimination remedies. It concludes with some comments about the ambiguities and limitations of Legal Pragmatism.

TABLE OF CONTENTS

INTRODUCTION
  I. LEGAL LIBERALISM: AN EXPOSITION
     A. Background Premises
        1. The Victim Perspective
        2. Populism
        3. The Priority of Rights
     B. Operating Premises
      1. Procedural Individuation and Differentiation
      2. Rules and Standards
      3. Confidentiality and Bilateral Information Control
 II. A LIBERAL CRITIQUE OF LEGAL LIBERALISM
     A. The Anti-Policy Bias of Rights Talk
        1. Community Policing
        2. Tort Reform
     B. The Inhibition of Civic Organization
        1. Social Policy Design
        2. Professional Responsibility and Legal Aid
     C. Minimizing Lawyer Accountability to Clients
     D. Diseconomies of Information
        1. Disincentives for Producing Information
        2. Lack of Coordination of Dispute Resolution
           and Regulatory Effects
     E. Rules and Standard Pathologies
III. LEGAL PRAGMATISM
     A. Background Premises
        1. The Citizen Perspective
        2. Associative Democracy
        3. The Priority of Solutions
     B. Operating Premises
        1. Stakeholder Negotiation
           a. Deliberation
           b. Background Institutions
        2. Rolling Rule Regimes
        3. Transparency
 IV. Two CASE STUDIES
     A. Drug Courts
     B. Second Generation Employment Discrimination
  V. AMBIGUITIES AND LIMITATIONS
     A. Vagueness About Domain
     B. Incomplete Sublimation of Distributive Issues
     C. The Problem of Interest Representation
     D. The Reversion Danger
CONCLUSION

INTRODUCTION

The conventions of judicial and academic discourse encourage legal writing to affect a position above politics. The writer appeals to interpretations of authoritative texts and public values as if they were shared across political perspectives. In fact, of course, both premises and conclusions are hotly contested in most areas of legal discussion, and in many areas they correlate strongly with recognizable political positions. We often think of the political distinction between conservatives and liberals as a central axis of legal controversy.

In this Article, I propose to relax the conventions and focus directly and explicitly on the liberal political perspective from which a large fraction of the bar, and an even larger fraction of the academy, argue in order to examine an interesting development within that perspective.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.