Reading Notes--mostly précis and summary!
Adam Kissel

Judges stress their "reason" to the exclusion of their "passion," though these are connected and inform each other. "Reason" is distinguished and stressed because of the great unreliability of mere emotion, but a person's whole-response (cf. Ferré) does not distinguish reason from passion. We should recognize whole-response judgments for what they are and evaluate them with whole-response tools.

Justice Brennan defines passion as "any mental faculty which is not reason, narrowly defined" (40). "Bureaucratic rationality" denies the Constitutional values of human liberty and dignity (41). But to overcome this is merely to repeat the argument against legal formalism (AK). A merely rational system can never achieve the particularity of understanding specific situations that is required for good judgments. Furthermore, even a "hyper-rational" system evinces an emotive fear of emotion. Since people and situations are complex, a fully nuanced rational system is necessary; but as every nuance can never be dealt with ahead of time, "careful thinking" about details of specific situations is always necessary. Reason may not easily (if at all) provide a solution to questions of incommensurate value. Human judgment is called for by Brennan (44). Human judgment includes individual passion but also that of society.

Most of the remainder of the paper discusses the human judgment that is required for judges to fulfill their responsibilities: getting the perspective of all parties involved, remaining open to the newness of each case, et al. A judge can rule based on current law, while simultaneously making clear that he doesn't agree with the law.