Abstract

http://ssrn.com/abstract=390460
 
 

Citations (2)



 
 

Footnotes (106)



 


 



Judicial Review and Legal Pragmatism


Thomas C. Grey


Stanford Law School


Wake Forest Law Review, May 2003

Abstract:     
Until World War II, the United States was the only legal system to have active judicial review, and it was also the legal system within which a functionalist or pragmatist rather than a formalist approach to law generally was best established in legal education, commentary, and judicial discourse. What is the connection between these two phenomena? One possibility is that judicial review furthers a "statesmanlike" and hence a flexibly pragmatic approach to legal questions. Such a story can plausibly be told about how over the last half century legal systems around the world have gotten more pragmatic in their approach to law generally, as they have adapted to judicial review. A similar story can be told about American legal history - that John Marshall in establishing judicial review also inaugurated the Grand Style that led on to Cardozo and Llewellyn by direct inspiration. But on examination the latter story doesn't hold up. If judicial review led to pragmatic jurisprudence in this country, it was by reaction, not direct inspiration. The legal Progressives, who were skeptics about judicial review, effectively joined into a single "assault on formalism" their critiques both of Langellian private-law conceptualism, and of the aggressive classic-liberal constitutional doctrines of the Lochner era. These two tendencies were only loosely related, as we can see when we analyze the elements that lead us to describe a body of thought as formalist. But the Progressives' successful conflation of them into a single impressive bogeyman helped motivate the establishment of the functionalist orthodoxy that was articulated over the course of the twentieth century by Holmes, Thayer, Gray, Pound, Cardozo, Brandeis, Corbin, Wigmore, Llewellyn, Fuller, Traynor, Posner, and the many other pragmatist legal thinkers who have made up the mainstream of modern American legal thought.

Number of Pages in PDF File: 30

Accepted Paper Series


Download This Paper

Date posted: April 1, 2003  

Suggested Citation

Grey, Thomas C., Judicial Review and Legal Pragmatism. Wake Forest Law Review, May 2003. Available at SSRN: http://ssrn.com/abstract=390460 or http://dx.doi.org/10.2139/ssrn.390460

Contact Information

Thomas C. Grey (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
Feedback to SSRN


Paper statistics
Abstract Views: 3,499
Downloads: 685
Download Rank: 19,653
Citations:  2
Footnotes:  106

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.234 seconds