Right off the bat I want to thank Steve for his generous words of praise for my 1995 book, Simple Rules for a Complex World. But at the same time I should go to great pains to distance myself from at least some versions of pragmatism that have come into such philosophical vogue.
Here we have to start with some simple differentiations. Pragmatism is a fiercely two-faced term, which has both positive and negative connotations. In one sense we can say of an individual that she is pragmatic if she takes the world as given and not as she would like it to be. Facing facts is hardly something to be frowned upon in making a choice whether to take a job or buy a house. Yet that same person is pragmatic in the bad sense if she thinks as follows. X is my preferred alternative if I have to stay within the rules. But in this case I don�t think that I shall be caught, so the pragmatic choice (taking into account the risk of detection and capture) is to break the law in order to achieve some larger gain. At that point, morals are reduced to multiplication to see whether crime pays. The last thing that any social system wants to do is encourage that form of pragmatism. Indeed the whole effort to get people to �internalize� social norms is designed to kill that attitude.
Legal systems have different but complementary functions. They are not concerned, except when excessively paternalist, in reviewing the soundness of individual choices made by people who play within the rules. That is for them to decide. But it is concerned with the soundness of the rules that guides the choices, and with setting up rules that make it harder to game the system. The legal pragmatist often picks out clever rules with lots of moving parts that make this superintendence harder to do. In dealing with the tort law, for example, the pragmatist may gravitate to rules that look at the costs and benefits of the actions taken before the injury to determine whether it was �cost-justified.� But these numbers are manipulable after the fact, and the far more sensible rule-based approach is to ask whether the defendant crossed the white line in the middle of the road, not whether he made every effort to stay on his side. Just imagine what baseball would look like if fair balls were called foul because the wind blew them back into play, or vice versa. Outputs, not inputs are the usual way to separate individuals. A tort system should pay heavy attention to boundary conditions in dealing with these stranger cases. It is therefore parasitic on a strong system of property rights.
All this has constitutional heft in the property rights areas that I care so much about. A pragmatic approach to eminent domain is exemplified by the misguided decision (a Justice Brennan special!) in the 1978 Penn Central case. Brennan's opinion despaired of finding rules, and then resorted to �ad hoc� (his words!) factors that celebrated the level of discretion in public figures. The upshot was that this highly discretionary program of landmark designation now goes forward notwithstanding the heavy disproportionate impact it imposes on those who are stripped of their ordinary development rights. A compensation program would force the state to decide whether the taking was worth the candle. The current law thus encourages aggressive designation, often spurred by competitors who do not want to face new entrants into their neighborhoods, and it retards the use of voluntary devices, such as conservation easements, that are better suited for the task. Peggy Radin defended cases like Penn Central for their pragmatic virtues, and attacked as a �conceptual severance� the sensible view that property gains its value because it can be subdivided by contract into leases, easements and the like. Penn Central and constitutional pragmaticism should be roundly condemned for the irresponsibility that they introduce into public life. This sort of ad hoc pragmatism has no place in any culture that respects the rule of law that Steve has so consistently and ably defended.