Situated Decisionmaking

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Southern California Law Review, Vol: 63, Page: 1727-1746

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Wells, Catharine P.
judicial detachment; pragmatism; pragmatic legal theory; judicial engagement; spectator judging; situated judging; situated and nonsituated decision-making; legal rationality; legal deliberation; Courts; Judges; Jurisprudence; Law and Politics; Law and Society; Legal Ethics and Professional Responsibility; Legal Writing and Research; Legislation; Litigation
article description
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. Instead, the author suggests that they 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.