It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful to modern adjudication. The article concludes that, despite repeated attempts by Posner to deflect the charge, legal pragmatism serves only as a method of justifying outcomes that comport with the personal temperament and intuitions of those applying it. The article then asks whether the pursuit of fidelity characterized by formalist or “legalist” methodologies should be revived, not because formalism saves us from indeterminacy—its inability to do so being the primary reason realists/pragmatists reject formalism—but because it offers what pragmatism cannot: a serious role for political theory in establishing the outer boundaries of judicial power.
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Available at: http://works.bepress.com/edward_cantu/9/