Washington University Jurisprudence Review, Vol 11, Forthcoming
39 Pages Posted: 15 May 2018 Last revised: 29 Nov 2018
Date Written: May 2, 2018
Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we need to develop a vocabulary to assess whether judges are “judging well,” because the activity of judging well serves as the cornerstone of the rule of law.
The article unfolds in three parts. First, I briefly review Professor William Popkin’s admirable work as a starting point for analysis. Drawing on Kantian aesthetics, Popkin defends the ability to assess non-deductive judgments. I develop his conception of “ordinary judgment” along different lines, arguing for a conception of “judging well” that is rooted in practical reasoning as articulated rhetorically. Leslie Paul Thiel brings contemporary work in neuroscience to bear on what I term “rhetorical knowledge.”
I conclude that judgment is a foundational capacity deeply rooted in the structure of our brain and intrinsic to our sense of self. We cultivate rhetorical knowledge through interpretive experiences that provide us with dynamic resources to exercise judgment in changing circumstances. Law judges exhibit this fundamental activity in a disciplined manner. Judgment is real and constrained, even if it is neither deductive nor rationally defensible as an objective fact.
I defend my account by assessing the opinions in Hively v. Ivy Tech Community College, the Seventh Circuit case that held that discriminating against LGBT employees is a form of sex discrimination under Title VII. The multiple opinions provide competing conceptions of judging well, and I assess them in light of my theory.
Judging well is not a mysterious or rare event. It is something that we do and see every day. By attending to how we judge well, we can best preserve the fragile structures that subtend the operation of our legal system and engender hope that the quest for justice, however, imperfect and halting, can continue.
Keywords: William Popkin, Leslie Paul Thiel, Kant, Critique of Judgment, Practical Reasoning, Hans-Georg Gadamer, Chaim Perelman, Richard Posner, Hively v. Ivy Tech, LGBTQ, Title VII, Sexual Orientation Discrimination
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