Legal Pragmatism and Presidential Power: A Case Study

50 Pages Posted: 7 May 2021 Last revised: 15 Mar 2022

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law

Date Written: May 4, 2021

Abstract

This essay explores the differences between legal pragmatism and formalism as working forms of legal thought. After a short overview of pragmatism and a discussion of Louis Brandeis as an exemplar, it turns to the evolving caselaw regarding presidential removal. This issue has led to notable faceoffs between formalists and pragmatist, from Taft v. Holmes and Brandeis, to Roberts and Thomas v. Kagan. Because of their preference for bright-line rules, formalists have tended to oversimplify Founding era history and post-Founding practice. Pragmatist judges have provided more nuanced historical accounts and have tried to come to grips with the tradeoffs involved in issues of institutional design. The choice between these styles of thought is not inherently tied to differences in ideology or substantive constitutional views. Legal pragmatism has the potential, however, to connect judicial decisions to issues that are meaningful to the public, to provide more transparency into the reasons that motivate decisions, and to promote better dialogue among judges.

Keywords: presidency, presidential power, pragmatism, legal formalism, originalism, removal power, Article II

JEL Classification: K20, K40, H11

Suggested Citation

Farber, Daniel A., Legal Pragmatism and Presidential Power: A Case Study (May 4, 2021). Available at SSRN: https://ssrn.com/abstract=3839787 or http://dx.doi.org/10.2139/ssrn.3839787

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

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