Law, Pragmatism, and Democracy

Richard A. Posner

    Preface

    Introduction: Pragmatic Liberalism and the Plan of the Book

    1. Pragmatism: Philosophical versus Everyday

    The Pragmatic Mood and the Rise of Philosophical Pragmatism

    Orthodox versus Recusant Pragmatism

    The Influence of Philosophical Pragmatism on Law Everyday Pragmatism

    2. Legal Pragmatism

    Some Principles of Pragmatic Adjudication

    John Marshall as Pragmatist

    The Objections to Legal Pragmatism Recapitulated

    3. John Dewey on Democracy and Law

    Deweyan Democracy: From Epistemic to Deliberative

    Dewey's Concept of Political Democracy Evaluated

    Dewey's Theory of Law

    The Theory Extended

    4. Two Concepts of Democracy

    Concept 1 Democracy: Idealistic, Deliberative, Deweyan

    Concept 2 Democracy: Elite, Pragmatic, Schumpeterian

    American Democracy Today

    Democracy and Condescension

    5. Democracy Defended

    The Two Concepts Evaluated

    But Is the Well Poisoned?

    Pragmatism and Convergence

    An Economic Interpretation of Concept 2 Democracy

    A Behavioralist Interpretation

    But Is Concept 2 Democracy Legitimate?

    6. The Concepts Applied

    The Impeachment of President Clinton

    The 2000 Election Deadlock

    Judges on Democracy

    Schumpeter, Antitrust, and the Law of Democracy

    Of Human Nature

    7. Kelsen versus Hayek: Pragmatism, Economics, and Democracy

    Kelsen's Theory of Law

    Kelsen, Pragmatism, and Economics

    Kelsen Positivism Contrasted with the Positivist Theories of Hart and Easterbrook

    Hayek Theory of Adjudication Hayek on Kelsen; Kelsen and Schumpeter

    8. Legality and Necessity

    Crisis Prevention as Pragmatic Adjudication

    Lawyers' Hubris

    Clinton v. Jones

    9. Pragmatic Adjudication: The Case of Bush v. Gore

    The Case

    A Potential Crisis Averted

    A Pragmatic Donnybrook

    The Perils of Formalism

    The Democratic Legitimacy of Pragmatic Adjudication Revisited

    Coping with Indeterminacy

    10. Purposes versus Consequences in First Amendment Analysis

    The Pragmatic Approach to Free Speech

    The "Purposivist" Critique of the Pragmatic Approach

    Conclusion

    Index

  • Cover: Law, Pragmatism, and Democracy
  • A photo of the author

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.