Legacies of Pragmatism

49 Pages Posted: 8 Jun 2021

See all articles by Robert L. Tsai

Robert L. Tsai

Boston University School of Law

Date Written: June 4, 2021

Abstract

Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I contend that pragmatism takes different forms in their theories: disciplinary substitution, decisional allocation, managed consequentialism, and materialist purposivism. Together, these represent the legacies of pragmatism. Third, after considering the views of Robin West and Roberto Unger, I offer some thoughts about what it will take to construct a form of pragmatism that restores the tradition's emphasis on humanistic governance.

Keywords: pragmatism, philosophy, legal philosophy, constitutionalism, judging, William James, minimalism, jurisprudence, institutionalism, constitutional theory

Suggested Citation

Tsai, Robert L., Legacies of Pragmatism (June 4, 2021). Drake Law Review, Vol. 69, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3860155

Robert L. Tsai (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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