Solving problems vs. claiming rights: the Pragmatist challenge to Legal Liberalism.

• Author: Simon, William H.

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 fifty 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 Article 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 the ambiguities and limitations of Legal Pragmatism.

TABLE OF CONTENTS INTRODUCTION I. LEGAL LIBERALISM: AN EXPOSITION A. Background Premises 1. The Victim Perspective 2. Populism 3. The Priority of Rights B. Operating Premises 1. Procedural Individuation and Differentiation 2. Rules and Standards 3. Confidentiality and Bilateral Information Control II. A LIBERAL CRITIQUE OF LEGAL LIBERALISM A. The Anti-Policy Bias of Rights Talk 1. Community Policing 2. Tort Reform B. The Inhibition of Civic Organization 1. Social Policy Design 2. Professional Responsibility and Legal Aid C. Minimizing Lawyer Accountability to Clients D. Diseconomies of Information 1. Disincentives for Producing Information 2. Lack of Coordination of Dispute Resolution and Regulatory Effects E. Rules and Standard Pathologies III. LEGAL PRAGMATISM A. Background Premises 1. The Citizen Perspective 2. Associative Democracy 3. The Priority of Solutions B. Operating Premises 1. Stakeholder Negotiation a. Deliberation b. Background Institutions 2. Rolling Rule Regimes 3. Transparency IV. Two CASE STUDIES A. Drug Courts B. Second Generation Employment Discrimination V. AMBIGUITIES AND LIMITATIONS A. Vagueness About Domain B. Incomplete Sublimation of Distributive Issues C. The Problem of Interest Representation D. The Reversion Danger CONCLUSION INTRODUCTION

The conventions of judicial and academic discourse encourage legal writing to affect a position above politics. The writer appeals to interpretations of authoritative texts and public values as if they were shared across political perspectives. In fact, of course, both premises and conclusions are hotly contested in most areas of legal discussion, and in many areas they correlate strongly with recognizable political positions. We often think of the political distinction between conservatives and liberals as a central axis of legal controversy.

In this Article, I propose to relax the conventions and focus directly and explicitly on the liberal political perspective from which a large fraction of the bar, and an even larger fraction of the academy, argue in order to examine an interesting development within that perspective. This is the emergence of a new liberal approach to legal issues in substantial tension with, and sometimes openly hostile to, the best-known older approach. The older approach can be called Legal Liberalism. There is no canonical definition of Legal Liberalism, but we know it when we see it. Its tacit indicia include predispositions in favor of plaintiffs in tort and civil rights cases, defendants in criminal cases, consumers in commercial cases, and workers in employment cases. Its explicit elements include the positions and ideas conventionally associated with the Warren Court, the ACLU, the NAACP Legal Defense Fund, Ralph Nader, and the legal aid and public defender movements.

Until recently, criticism of these ideas has tended to come from outside the more general political orientation with which Legal Liberalism is associated. Legal liberals are liberals in the broader political sense that connotes, first, a scheme of values that gives priority to moderate versions of equality and liberty, and second, a position on the American political spectrum between the middle and the far left. Most criticism of Legal Liberalism has come from conservatives, who tend to dispute the priority liberalism gives to liberty or equality, or from radicals, who tend to dispute liberalism's moderation.

There have been occasional episodes in which a particular tenet of Legal Liberalism has been challenged from within political liberalism. Such disputes tend to generate a good deal of interest and tension. In 1976, for example, Derrick Bell criticized the NAACP's school desegregation strategy as sacrificing the interests of urban blacks in sound education and political efficacy to an ineffectual and dogmatic conception of rights. (1) More recently, a liberal critique has argued that due process protections for criminal defendants associated with the Warren Court unjustifiably impede minority communities from organizing to protect vital interests in neighborhood security. (2)

A more comprehensive critique in a similar spirit is implicit in a growing body of legal studies invoking or reflecting the tenets of Prasmatism. As philosophical doctrine, Prasmatism is noted for its insistence that thought is instrumental (the truth or value of an assertion lies, not in its correspondence with some ultimate reality, but in what it can do for us) and contextual (assertions should be interpreted in the social circumstances in which they arise). As political theory, especially as elaborated by John Dewey, Pragmatism is noted for its commitment to, and understanding of, democracy as a process of collaborative inquiry and learning. (3) Its theoretical commitments lead Prasmatism to resist approaches to legal issues that rely primarily on abstract analytical schemes and methods. Its institutional commitments lead it to resist arrangements that are either centralized and unaccountable on the one hand or anarchically diffuse on the other.

It is doubtful whether, in the abstract, any of these precepts pose serious trouble for Legal Liberalism. Yet, some recent writing has pursued them, not in the abstract, but through studies of innovative responses to social problems. The studies find the Pragmatist spirit in a variety of experiments, including drug courts, ecosystem management, "new accountability" educational reform, community policing, international labor standards enforcement, employment discrimination remediation regimes, and health disparity collaboratives, among many others. The studies have led to both particular conclusions and general programmatic approaches that challenge Legal Liberal premises. The perspective of these studies is by no means the only possible legal version of Pragmatism, but it is the most fully elaborated one. (4)

In Part I, I offer a picture of Legal Liberalism, inferred from the dominant tendencies of liberal lawyers' rhetoric of the last fifty years. Because I am interested in the implicit jurisprudence of practicing lawyers more than in academic theory, I have relied as much on journalism and casual observation as I have on scholarship. In Part II, I formulate some of the principal objections to this doctrine from a variety of perspectives, more or less pragmatist in spirit. Part III elaborates the alternative perspective of Legal Pragmatism, and Part IV illustrates it with two recent studies--one of drug courts by Michael Dorf and Charles Sabel and another of sexual harassment litigation by Susan Sturm. In Part V, I consider some limitations of, or objections to, the pragmatist approach.

1. LEGAL LIBERALISM: AN EXPOSITION

   Legal Liberalism consists of six mutually reinforcing premises. Three are background premises--the Victim Perspective, Populism, and the Priority of Rights. Three are practical and strategic. They involve orientations toward the control of information, the choice of legal form between rules and standards, and the structure of procedure. (5)

   1. Background Premises

      1. The Victim Perspective

         Legal Liberalism sees law as fundamentally concerned with the needs of the wounded and vulnerable. It tends to conflate the realm of law with that of compassion. Among traditional litigants, it is presumptively solicitous of tort plaintiffs and criminal defendants. More recently, the presumption has extended to civil rights plaintiffs and it has sought to extend legal protection to successive new classes of wounded and vulnerable, including abused women, children, the elderly, the mentally ill, the disabled, mistreated workers and tenants, and welfare recipients. (6)

         The Victim Perspective does not exactly repudiate the traditional premise that law must do justice even when justice is in tension with compassion. Its solicitude for the weak and injured, however, plays a strong background role. It motivates the expansion of law into new domains, and it operates as a presumption in cases of ambiguity or uncertainty. For example, when there is uncertainty about social facts, such as whether the death penalty deters crime or welfare causes family break-up or unemployment, the Victim Perspective resolves such doubts in favor of defendants and recipients generally. In cases of adjudicative facts--the facts of particular disputes...