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Justice Scalia described his jurisprudence as "The Rule of Law as the Law of Rules."

Justice O'Connor, a pragmatist, saw the work of the law as making law work.

aslanfan (mail):
The problem with pragmatism is that it doesn't work. Or as Chesterton put it, when you become a pragmatist, the first thing you discover you need is a philosophy.
7.1.2005 1:57pm
Elliot (mail):
Professor, with all respect, I see little difference in that position than with a dictatorship. I'd loved to be convinced that I am wrong though.
7.1.2005 2:02pm
Combine that with Pelosi's idea that Supreme Court rulings "are as if God has spoken" and "pragmatism" begins to sound a lot like being ruled by an oligarchy's whims.
7.1.2005 2:23pm
Eugene Volokh (www):
Well, I generally prefer rules over pragmatism, in part because I think that ultimately rules do work better for the legal system -- pragmatism requires rules in at least some situations. But I was just trying to describe her jurisprudence (albeit in the sympathetic way that's customary after a retirement) rather than to argue that it's the best approach.
7.1.2005 2:58pm
just me (mail):
How about "she worked the law to make more work for lawyers" ? :-)

Nothing like a good old "totality of the circumstances" test to ensure full employment for the lawyers!

And perhaps the full corpus of her work should be titled "the totality of the balancing tests."
7.1.2005 3:55pm
Elliot (mail):
fair enough
7.1.2005 3:56pm
Robert Schwartz (mail):
"Justice O'Connor, a pragmatist, saw the work of the law as making law work."

Good but not quite right. Justice O'Connor, a political hack, made it up as she went along.
7.1.2005 6:53pm
frankcross (mail):
Well, Posner the uber-pragmatist emphasizes the pragmatic value of adhering to rules in most cases.

But there is a different defense of O'Connor's approach. Scalia's rules are fundamentally a jurisprudence of mistrust. In theory, a vague standard is preferable and can be determinate, if it is being administered by a faithful judiciary, applying the law to facts. Scalia wants hard and fast rules, because he doesn't trust the lower courts to be faithful agents. O'Connor's judicial minimalism, by contrast, trusts the lower courts to apply her decisions faithfully. This is a more Hayekian bottom up approach to reaching optimal decisions, because it can take advantage of the greater information possessed by lower courts hearing a wide range of cases, some of which the USSC did not anticipate.
7.1.2005 8:23pm
CharleyCarp (mail):
Phooey (on everyone but frankcross). The point of rules is that they serve society. Not the other way around. Justice Scalia's approach often seems to me to have no relationship to what we -- our society -- is trying to accomplish.
7.1.2005 8:30pm
erp (mail):
CharleyCarp, Don't keep us in suspense. What is our society -- trying to accomplish?
7.2.2005 12:04pm
Kevin Baker (mail) (www):
"CharleyCarp, Don't keep us in suspense. What is our society -- trying to accomplish?"

TODAY, that is.
7.2.2005 2:28pm
CharleyCarp (mail):
Pick any issue, and I'll tell you. ;- )

Rules are a means, not an end. That's what I meant. Do you disagree?
7.2.2005 5:22pm
erp (mail):
I agree rules are tools, but that doesn't tell us what we as a society are trying to accomplish or even who the we are?

Do you mean we Americans, we human beings, we constitutional attorneys, we moonbats?

Who be the we?
7.2.2005 6:55pm
DAF (mail):
I always wanted to write an article:

Sandra Day O'Connor: Knuckleball Pitcher of the Supreme Court.

There's still time.
7.4.2005 8:57pm