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Justice Breyer's Democratic Pragmatism |
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Cass R. Sunstein [View as PDF]
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115 Yale L.J. 1719 (2006)
As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" to regulatory tools; he urged that an understanding of the particular problem that justified regulation would help in the selection of the right tool. One of Breyer's major innovations lay in an insistence on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects of regulation on the real world. Hence Breyer argued for a close connection between administrative law and regulatory policy. Continuing his pragmatic orientation, he also emphasized the importance of better priority-setting in regulation--of finding mechanisms to ensure that resources are devoted to large problems rather than small ones.
While some of Breyer's work touched on the separation of powers, constitutional law was not his field. But as a member of the Supreme Court, Breyer has slowly been developing a distinctive approach of his own, one that also has a pragmatic dimension, and that can be seen as directly responsive to his colleague, Justice Antonin Scalia, and to Scalia's embrace of "originalism": the view that the Constitution should be interpreted to mean what it originally meant.
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