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Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518 (1986).

Abstract: This paper attempts to describe the process of legal reasoning as I imagine I might do it if I were a judge assigned a case that initially seemed to present a conflict between "the law" and "how-I-want-to-come-out." Such a description, if at all true to experience, may be helpful in assessing the various claims about and images of law that figure in jurisprudential, political, and social theoretical discussion. It may also be helpful in assessing what law teachers teach future lawyers about the nature of the materials they will use in their profession. But I will have little to say about these implications, aside from a polemical afterword.1 I am not sure what difference it makes to the phenomenology of adjudication whether I begin with this situation rather than another. The whole experience of law may be sufficiently the same thing through and through so that wherever you start, you end up with approximately the same picture. Or it may be that there is no experience of legality that's constant without regard to role and initial posture of the case. What I am convinced of is the need to start with some particularization. I don't find myself at all convinced when people start out claiming they can tell us about judging without some grounding in a specific imagined situation.