Formalism and Pragmatism in American Law


In Formalism and Pragmatism in American Law Thomas Grey gives a full account of each of these modes of legal thought, with particular attention to the versions of them promulgated by their influential exponents Christopher Columbus Langdell and Oliver Wendell Holmes, Jr. Grey argues that legal pragmatism as understood by Holmes is the best jurisprudential framework for a modern legal system. He enriches his theoretical account with treatments of central issues in three important areas of law in the United States: constitutional interpretation, property, and torts.

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Thomas C. Grey, Ll.B. (1968) Yale Law School, is Sweitzer Professor of Law, Emeritus, at Stanford Law School. He is a leading legal theorist and historian of the development of modern American legal thought. He has written extensively on the development of such strains of legal thought as pragmatism, formalism, and realism with particular attention to the jurisprudence of Oliver Wendell Holmes Jr. Earlier in his career, he wrote significant articles on constitutional law, history, and theory, with special emphasis on the "unwritten constitution" of unenumerated constitutional rights. He also taught torts to first-year students for more than 30 years before his retirement in 2007.

Professor Grey is a fellow of the American Academy of Arts and Sciences and is the recipient of an honorary law degree from Chicago-Kent College of Law. Before joining the Stanford Law School faculty in 1971, he served as a clerk to Justice Thurgood Marshall of the U.S. Supreme Court and Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit.
"There were good reasons why John Dewey and Chinese intellectuals found a special affinity for each other a century ago. Pragmatists emphasize actions more than abstractions, what works more than what is formally logical. And, for Oliver Wendell Holmes, pragmatism meant also combining both the practical and the socially desirable. Thomas Grey’s work is included in this “Social Sciences of Practice” series because Grey can be considered the leading historian-theorist of America’s (new) legal pragmatism in the tradition of Holmes and Dewey."
Professor Philip C. C. Huang, University of California, Los Angeles and Renmin University of China
Author’s Biography
Series Foreword


1 Do We Have an Unwritten Constitution?
The Pure Interpretive Model
Beyond Interpretation
The Implications of the Pure Interpretive Model
Beyond Interpretation: A Program of Inquiry

2 The Disintegration of Property

3 Langdell’s Orthodoxy

4 Holmes and Legal Pragmatism
The Priority of Practice
Law as Experience
Law as Logic
Law as Prediction
Holmes Divided: The Spectator at the Storm Center
The End-Means Continuum and the Lawyer’s Work
Appendix: Holmes and the Pragmatists

5 Accidental Torts
What is a Tort?
A Proper Subject
The Structure and Domain of Tort Law

All interested in the development of modern legal systems, particularly that of the United States, and the theoretical frameworks that have been most influential in that development.