Formalism and Pragmatism in American Law

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.

• Author’s BiographySeries ForewordIntroduction1 Do We Have an Unwritten Constitution?The Pure Interpretive ModelBeyond InterpretationThe Implications of the Pure Interpretive Model Beyond Interpretation: A Program of Inquiry Conclusion 2 The Disintegration of Property3 Langdell’s Orthodoxy4 Holmes and Legal PragmatismThe Priority of PracticeLaw as ExperienceLaw as LogicLaw as PredictionHolmes Divided: The Spectator at the Storm CenterThe End-Means Continuum and the Lawyer’s Work Appendix: Holmes and the Pragmatists5 Accidental TortsWhat is a Tort?A Proper SubjectThe Structure and Domain of Tort LawConclusionBibliography

"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