Professor Luban elaborates on Martha Minow's description of Jack Weinstein as a "judge for the situation." Louis Brandeis coined the term "counsel for the situation" to describe the activities of lawyers who represent clients by accommodating their interests to those of other parties, rather than by one-sided partisan advocacy. By analogy, the judge for the situation aggressively mediates cases, insisting that all parties to the actual dispute-including those who are not nominally party to the litigation-work out an appropriate settlement. By breaking with the more familiar roles played by judges and lawyers in the adversary system, both the counsel and the judge for the situation sail into uncharted ethical waters, where only their own good judgment fends off the threat of illegitimacy. Professor Luban reconstructs Judge Weinstein's underlying theory of judging for the situation, and examines several arguments that judging for the situation exceeds an Article III judge's legitimate powers. Although he concludes that such arguments ultimately fail, he believes that judging for the situation remains fraught with risk.
