Judging Discretion: Contexts for Understanding the Role of Judgment

Abstract

This article approaches from a new angle the problem of understanding the meaning and scope of discretion in the judicial role and how an appellate court can or should judge the use or abuse of a lower court’s freedom of judgment. This article considers the meaning and practical application of the appellate standard of review of “abuse of discretion” across three different areas of law: federal sentencing, injunctive relief, and civil case management. The purpose behind this approach is to attempt to find commonalities that can be drawn across subject matter lines on a topic that is currently rife with imprecision in its implementation. Looking at the broad brush picture of what abuse of discretion means and how it is judged as a practical matter in different contexts, this article brings into relief certain essential characteristics of cases in which abuse of discretion can be meaningfully assessed by an appellate court. Where it also brings into relief certain types of cases in which judicial freedom to choose cannot be meaningfully or consistently judged for abuse by an appellate court, the article suggests alternative terminology and alternative mechanisms for oversight.

Keywords: scope of discretion, judicial role, abuse of discretion, judicial freedom

JEL Classification: K1