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
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. …