Pragmatic Liberalism: The Outlook of the Dead

INTRODUCTIONMost of us know the unpleasantries of crisis. Of course, the crises we have known are sometimes not all that crisis-like, such as when we face the "crisis" of what to wear tonight or where to eat. Of the more serious sort, there are the usual suspects. There is the well-chronicled crisis of teen angst. There is the mid-life crisis with its Corvettes and the crisis of old-age, grasping for the point of it all. There is the schizophrenic. And then there are other types of identity crisis: questions about racial, ethnic, or cultural belonging, religious affiliation, sexuality, and so on. But of whatever kind the crisis is, if it is for real, we tend to expect the presence of a deep internal conflict giving rise to the search for meaningful identity.1Now, if the idea of identity crisis is relatively familiar, what if we turn from so-called personal identities to professional ones?2 Does a crisis of "legal identity" even make sense? If it does make sense, then there is little doubt that, at least here in the United States, it is an identity in crisis.3 Worries range from those about the transformation of the job market for law school graduates to the nature of the big firm to legal education's inadequacy in tracking the real demands on the practicing lawyer.4 Of course, some of these concerns are not really all that new.5 But whatever we think of the pedigree of any one of these anxieties, it is difficult to deny that here in the second decade of the twenty-first century the legal profession is under assault.6 Crisis is upon us.And so, it is in this shadow that this Article confronts the question of our professional identity as lawyers. This confrontation begins with a suspicion. Perhaps what we presently experience as the surface manifestations of a legal profession in disarray can be analyzed as problems going to the very core of what it means to "think like a lawyer."7 Or to put this suspicion another way, what if the anxieties plaguing law schools and firms alike are symptoms of a more serious ambiguity at the heart of our legal identity? If the profession is indeed in a state of crisis, perhaps the root of it has something to do with our confusion about what it means to do a lawyer's work.Ultimately, this Article presents the following thesis: underlying the profession's problems sits a distinct manner of organizing, shaping, and finally stabilizing the way we think about what counts as a legal problem or solution. This "manner" is the product of two very different outlooks that have only recently come into contact with one another. They are "liberal legalism"8 and "legal pragmatism,"9 and, as I discuss below, the recent encounter between the two has yielded "pragmatic liberalism."10 Pragmatic liberalism, I suggest, is the deeper, structural source of the identity crisis now plaguing the legal profession.11 As a result, if we hope to successfully realize calls for legal reform, we need to better understand what it is that we are reforming. At the end of the day, the object of reform must be these deeper sources of contemporary legal thought; that is, pragmatic liberalism itself.This Article's portrayal of pragmatic liberalism and its structuring role in contemporary legal thought unfolds as follows. Part I begins with legal method, for the reason that there simply is no neutral or natural way of approaching "contemporary legal thought."12 After all, what counts?13 The legal thoughts of all people everywhere? Or only the legal thoughts of the elites? But who are the elites? How do we know? Although these questions may have once been answered with ease, in today's legal historiography, claims about periodization are relentlessly deconstructed.14 The historiographical method I am interested in here, and that emerged in this post-objectivist world of deconstruction, is "structuralist."15 The term "structuralism" has been used to mean many things,16 but here I use it to refer to that brand of social theory grounded in the semiotics of the Swiss linguist Ferdinand de Saussure. …