Solving Problems V. Claiming Rights: The Pragmatist Challenge to Legal Liberalism

Abstract

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 50 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 essay 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 ambiguities and limitations of Legal Pragmatism.