21 Pages Posted: 11 Aug 2005
The purpose of this Article is to examine the concerns that surround situated judging and the central questions to which they give rise: How can a situated judge render a just decision? On its face, the question appears to be both decisive and unanswerable. Upon deeper examination, however, we can see that the question relies upon a doubtful set of presuppositions about situated decision-making.
In the course of this Article, the author seeks to defend the pragmatic analysis of legal decision-making by casting doubt upon these assumptions. Part II develops two contrasting models of normative decision-making that represent the purported distinction between situated and nonsituated decision-making. In Part III, the author argues that these two models do not represent two alternative decision-making procedures, but instead describe two interdependent and indispensable parts of any decision-making process. Finally, the author concludes that the pragmatic espousal of situated decision-making can be understood, not as a rejection of rationally structured decision-making procedures, but rather as an elucidation and appreciation of the contextual elements of all forms of deliberation.
Keywords: judicial detachment, pragmatism, pragmatic legal theory, judicial engagement, spectator judging, situated judging, situated and nonsituated decision-making, legal rationality, legal deliberation
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