Experimental Pragmatism in the Third Globalization

Abstract

Pragmatism dominates contemporary legal thought, but knowing this isn't knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don't, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes imminent in the pragmatisms, and an understanding of where and when pragmatists might have parted ways from their liberal roots. Of course, we may very well want to keep these roots. But unless we know something about the new pragmatic liberalism, and from whence it came, the interminable circles of tired discourse against which we use our James and Dewey to rally, will remain curiously unbroken.1. IntroductionIt's a tricky business setting out to say something meaningful about long swaths of history, if not a silly one. When we find ourselves wanting to argue how a particular idea had a special purchase at a particular moment amidst some population, trouble's surely on its way: How concrete is the idea? Who actually held it? Why did it matter? Were they elites, and if so, why is a focus on elites so important? What about the history of the idea? What about the effects of the idea on the ground? Were they less or more important? How did the effects play themselves out? Universally? And what caused the idea in the first place? Is the idea important at all, or should we focus on the material conditions in which the idea arose? Why do we care?1So yes, intellectual history is tricky business, but as the early Pragmatist philosophers taught us,2 we needn't fear the briar patch if the trip's worth our while, and in this case, I believe that it is.3 In this essay, I follow the intuition that one type of such history - the mapping of American Legal Thought - is a tremendously fruitful project, and look to locate a still obscure though surely ascending mode of legal reasoning known as pragmatism.4 Though there are several maps to choose from,5 my methodological point of departure relies on Duncan Kennedy's analysis in his Three Globalizations of Law and Legal Thought.6In that work, Kennedy argues that since the U.S. Civil War, lawyers, judges, and policymakers in the United States have been participants in three phases of a global legal consciousness. Each phase globalized, Kennedy explains, at times representing the movement of legal ideas from Europe to the U.S., and at others in the reverse. The first globalization involved the transmission of ideas from Europe to the U.S., the second globalization involved more of a back and forth cross-Atlantic movement of social legal ideas, and the third globalization, in which we are now living, holds the United States at the core. What is helpful to understand about the map is that not everything that is happening now is necessarily indigenous to the contemporary legal thought of the third globalization. It's better to think of contemporary legal thought as a style or aesthetic than a period of time, such that we may very well see contemporary jurists operating in the mode of, say, classical legal thought, just as contemporary musicians might perform in a style that was for more popular a hundred years ago.The immediate question is therefore whether experimental pragmatism is a contemporary style - a style of law and policy that we would recognize as indigenous to the present moment. In the discussion that follows, I will cautiously answer this question in the affirmative. Unlike the unusual fashionista intent on wearing a 17th century peruke to the comer coffee shop, experimental pragmatism appears to be an established aspect of the administrative landscape. …