Pragmatic jurisprudence has advanced beyond Cardozo mainly in economics and free speech

Evidence

Reviewing my eight items, we can see that Cardozo had a solid pragmatic grasp of the weakness of formalism (point 3) and a good pragmatic theory of adjudication (point 6), but free speech was not an issue about which he was much concerned (point 1); the critique of intention and causation (point 2) was less developed than it is today and certainly less salient in Cardozo’s thinking; he was uninterested in interpretation and unrealistic about the legislative process (point 3); and he was innocent of the economic approach to law as a self-conscious methodology (point 6)-it did not exist in 1921, or indeed until half a century later-but like most good common law judges he had intuitions of it. — Richard A. Posner, What Has Pragmatism to Offer Law?, 138

Categorization

• XREF: Connects to Posner’s Law and Literature and the Landes-Posner economic structure of tort work, plus Cardozo’s Adams v. Bullock. — connects to: Reviewing my eight items, we can see that Cardozo had a solid pragmatic grasp of the weakness of formalism (point 3) and a good pragmatic theory of adjudication (point 6), but free speech was not an issue about which he was much concerned (point 1); the critique of intention and causation (point 2) was less developed than it is today and certainly less salient in Cardozo’s thinking; he was uninterested in interpretation and unrealistic about the legislative process (point 3); and he was innocent of the economic approach to law as a self-conscious methodology (point 6)-it did not exist in 1921, or indeed until half a century later-but like most good common law judges he had intuitions of it.; Although pragmatic jurisprudence embraces a richer set of ideas than can be found in The Nature of the Judicial Process or ‘The Path of the Law,’ one can hardly say that there has been much progress, and perhaps in the nature of pragmatism there cannot be.; A closely related point is that the application of scientific method to law lay in the future (point 7). Cardozo in his judicial opinions was very much the rhetorician (point 8), but his essay on judicial rhetoric is a disappointment—cute, civilized, but unanalytic. (+1 more)

Broader Connections

• The tendencies that many years ago were fruitfully absorbed into legal realism can indeed help in the formulation of a new jurisprudence, but it will be new largely in jettisoning the naive… #responds-to (0.70)