Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability

53 Pages Posted: 16 Mar 2014

See all articles by Edmund Ursin

Edmund Ursin

University of San Diego School of Law

Date Written: 2013


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.

Keywords: legal pragmatism, legal realism, great judges, jurisprudence, enterprise liability, tort law, Holmes, Cardozo, Traynor, Posner

JEL Classification: K10, K13, K19, K00, K40, K41, K49

Suggested Citation

Ursin, Edmund, Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability (2013). San Diego Law Review, Vol. 50, Summer 2013, San Diego Legal Studies Paper No. 14-144, Available at SSRN: https://ssrn.com/abstract=2409210 or http://dx.doi.org/10.2139/ssrn.2409210

Edmund Ursin (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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