Problem-Solving Courts and Pragmatism

Richard C. Boldt

Problem-solving courts have emerged in the United States as a significant feature on the criminal justice system landscape. Despite efforts to articulate a common set of governing principles, the problem-solving courts movement has been, for the most part, an atheoretical enterprise. The avoidance of theory, however, carries costs, particularly when individual decisionmakers seek to chart a course that is highly discretionary. Suitable tools are available to help organize thinking about the nature of the problems that problem-solving courts address and the solutions they attempt. These tools are derived from the insights of legal and philosophical pragmatism. This Article employs pragmatist theory to press focus on the nature of the problem solving undertaken by drug treatment courts and other specialized courts. It begins with an introduction to problem-solving courts and their embrace of practical pragmatic approaches to justice system dysfunction, and contrasts this ordinary pragmatism with the sort of theoretical pragmatism offered by John Dewey and his intellectual heirs. It then provides a brief overview of the chief arguments that were directed against early pragmatist thinkers and the counterarguments they offered in response, as well as similar arguments and counterarguments that have resurfaced more recently in response to newer forms of legal and philosophical pragmatism. In light of these arguments and counterarguments, the Article considers how pragmatist theory can inform the exercise of judgment by actors engaged in framing legal problems and developing legal solutions. The Article concludes by setting out two examples that help to show how a rigorous pragmatist approach can sharpen our understanding of problem-solving courts and the problem-solving courts movement.