Document Type



Comparative Law Review




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 immanent 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.


This article arose from a University of Colorado Law School workshop on Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in The New Law and Economic Development: A Critical Appraisal (David M. Trubek & Alvaro Santos eds., Oxford University Press 2006).