Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

This elegant analysis of democratic theory, by a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, argues for a legal pragmatism that pays greater attention to the consequences of what we do than to abstract principle.

• Preface Introduction: Pragmatic Liberalism and the Plan of the Book 1. Pragmatism: Philosophical versus Everyday The Pragmatic Mood and the Rise of Philosophical Pragmatism Orthodox versus Recusant Pragmatism The Influence of Philosophical Pragmatism on Law Everyday Pragmatism 2. Legal Pragmatism Some Principles of Pragmatic Adjudication John Marshall as Pragmatist The Objections to Legal Pragmatism Recapitulated 3. John Dewey on Democracy and Law Deweyan Democracy: From Epistemic to Deliberative Dewey's Concept of Political Democracy Evaluated Dewey's Theory of Law The Theory Extended 4. Two Concepts of Democracy Concept 1 Democracy: Idealistic, Deliberative, Deweyan Concept 2 Democracy: Elite, Pragmatic, Schumpeterian American Democracy Today Democracy and Condescension 5. Democracy Defended The Two Concepts Evaluated But Is the Well Poisoned? Pragmatism and Convergence An Economic Interpretation of Concept 2 Democracy A Behavioralist Interpretation But Is Concept 2 Democracy Legitimate? 6. The Concepts Applied The Impeachment of President Clinton The 2000 Election Deadlock Judges on Democracy Schumpeter, Antitrust, and the Law of Democracy Of Human Nature 7. Kelsen versus Hayek: Pragmatism, Economics, and Democracy Kelsen's Theory of Law Kelsen, Pragmatism, and Economics Kelsen Positivism Contrasted with the Positivist Theories of Hart and Easterbrook Hayek Theory of Adjudication Hayek on Kelsen; Kelsen and Schumpeter 8. Legality and Necessity Crisis Prevention as Pragmatic Adjudication Lawyers' Hubris Clinton v. Jones 9. Pragmatic Adjudication: The Case of Bush v. Gore The Case A Potential Crisis Averted A Pragmatic Donnybrook The Perils of Formalism The Democratic Legitimacy of Pragmatic Adjudication Revisited Coping with Indeterminacy 10. Purposes versus Consequences in First Amendment Analysis The Pragmatic Approach to Free Speech The "Purposivist" Critique of the Pragmatic Approach Conclusion Index

Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

This elegant analysis of democratic theory, by a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, argues for a legal pragmatism that pays greater attention to the consequences of what we do than to abstract principle.

• Preface Introduction: Pragmatic Liberalism and the Plan of the Book 1. Pragmatism: Philosophical versus Everyday The Pragmatic Mood and the Rise of Philosophical Pragmatism Orthodox versus Recusant Pragmatism The Influence of Philosophical Pragmatism on Law Everyday Pragmatism 2. Legal Pragmatism Some Principles of Pragmatic Adjudication John Marshall as Pragmatist The Objections to Legal Pragmatism Recapitulated 3. John Dewey on Democracy and Law Deweyan Democracy: From Epistemic to Deliberative Dewey's Concept of Political Democracy Evaluated Dewey's Theory of Law The Theory Extended 4. Two Concepts of Democracy Concept 1 Democracy: Idealistic, Deliberative, Deweyan Concept 2 Democracy: Elite, Pragmatic, Schumpeterian American Democracy Today Democracy and Condescension 5. Democracy Defended The Two Concepts Evaluated But Is the Well Poisoned? Pragmatism and Convergence An Economic Interpretation of Concept 2 Democracy A Behavioralist Interpretation But Is Concept 2 Democracy Legitimate? 6. The Concepts Applied The Impeachment of President Clinton The 2000 Election Deadlock Judges on Democracy Schumpeter, Antitrust, and the Law of Democracy Of Human Nature 7. Kelsen versus Hayek: Pragmatism, Economics, and Democracy Kelsen's Theory of Law Kelsen, Pragmatism, and Economics Kelsen Positivism Contrasted with the Positivist Theories of Hart and Easterbrook Hayek Theory of Adjudication Hayek on Kelsen; Kelsen and Schumpeter 8. Legality and Necessity Crisis Prevention as Pragmatic Adjudication Lawyers' Hubris Clinton v. Jones 9. Pragmatic Adjudication: The Case of Bush v. Gore The Case A Potential Crisis Averted A Pragmatic Donnybrook The Perils of Formalism The Democratic Legitimacy of Pragmatic Adjudication Revisited Coping with Indeterminacy 10. Purposes versus Consequences in First Amendment Analysis The Pragmatic Approach to Free Speech The "Purposivist" Critique of the Pragmatic Approach Conclusion Index