Contemporary Style

This week we begin the last unit of the course, Unit 4.

Our final unit offers an opportunity to revisit not only some of the substantive legal concepts we’ve studied throughout the course, but also to ask the question: How can we make sense of our current moment in common law thought? Is there a “contemporary” legal style, and if so what are its features?

As Justin Desautels-Stein has observed, the contemporary style of common law thought is not so much a third alternative to the classical and modern styles we studied in Units 2 and 3, as it is a “pragmatic” response by jurists to the shortcomings of these two styles that preceded it.¹ Unfortunately, the result is not a very satisfying one in terms of coherence or predictability. Whatever their shortcomings, both the classical and modern styles offered internally consistent (if ultimately incomplete) approaches to address the fundamental dilemma of liberalism with which we started our exploration of common law thought. By contrast, the pragmatism embraced in the contemporary style points to a willingness by jurists to draw on, mix and match features of the classical and modern styles—sometimes in the course of a single decision. The result, as Desautels-Stein suggests, is often a kind of “whatever works” response to the question of what makes the outcome in any given case a persuasive one.

To be clear, such a result does not mean that judicial decisions in the contemporary style are devoid of legal reasoning or logic. It does, however, suggest that courts in the current moment have largely abandon any concerted attempt to resolve the basic liberal dilemma from a consistent perspective.