Some Challenges for Legal Pragmatism: A Closer Look at Pragmatic Legal Reasoning

Abstract

Although scholars have discussed legal pragmatism for several decades, the literature does not contain a systematic analysis of the characteristic elements of pragmatic decisionmaking. This article tries to add that analytical perspective. It attempts to make sense of the extensive literature by identifying specific characteristics of pragmatic reasoning, then conducting a methodical comparison of distinctively pragmatic reasoning to more principled reasoning. I identify principled reasoning with legal form: as reasoning that gives some normative force to formal legal reasons. The criteria on which I compare the two modes of reasoning are: (1) generality versus contextuality; (2) level of decision costs; (3) effect on rate of true judicial error; (4) effect on predictability; and (5) effect on judicial legitimacy. This leads to some conclusions not yet found in that literature. In particular, I highlight specific conceptual and practical limitations on the ability of pragmatists to advance their goal of delivering the best judicial decisions all-things-considered. I conclude that pragmatism does not necessarily lead to more contextual reasoning - which probably is the central goal of pragmatism - and in fact may lead to more abstract reasoning. This conclusion makes the costs of pragmatism loom larger. I review those costs, specifically identifying an increase in decision costs, an increase in rate of true judicial error (because of an increase in the number of empirical claims and in the complexity of reasoning), a decrease in predictability, and a weaker grounding for judicial legitimacy. With respect to predictability, I question whether it is conceptually possible for pragmatists to take predictability into account only when doing so is pragmatically warranted. Rather, I contend, because pragmatism gives no normative force to precedent, it has no starting point from which to foster predictability.