Judicial pragmatism is a judicial methodology known for its future-looking mode of analysis, empirically-based decision making, and openness to judicial activism. In terms of strengths, judicial pragmatism helps to (1) maximize wealth and efficiency, (2) resolve truly novel cases, and (3) account for legislative shortcomings. In terms of weaknesses, judicial pragmatism poses the risks of (1) judicial tyranny, (2) overdependence on the social sciences, and (3) marginalization of important moral values. Although judicial pragmatism has generally been accepted as a helpful analytical approach, questions still remain over the extent to which it is helpful to judges in common law adjudication, legislative interpretation, and constitutional interpretation. The area in common law adjudication where judicial pragmatism offers promise is where the facts in the case are truly novel and the application of traditional common law rules is inefficient. In legislative interpretation, judicial pragmatism offers promise where the statute is vague, provides no instruction on how to interpret the statute, and has indicia of “delegation” of lawmaking authority to the courts. Finally, the area in constitutional interpretation where judicial pragmatism offers promise is where the issues involve truly novel facts and pressing social needs that are indirectly covered by the Constitution.
Doori Song, Judicial Pragmatism: Strengths and Weaknesses in Common Law Adjudication, Legislative Interpretation, and Constitutional Interpretation, 52 UIC J. Marshall L. Rev. 369 (2019)