Slouching toward Discretion

Abstract

Against this general background it turns to several recent "hot spots" of procedural controversy and assesses them in terms of the degree of discretionary activity. Although this examination confirms the views of the critics that discretionary activity has indeed increased, I view these developments with less alarm than some others. For one thing, there have been legal reactions ― by appellate courts, Congress, and the rulemakers ― that respond to the concerns raised by certain kinds of procedural discretion. I conclude that, even if the current activity holds risks, it is not clear that these risks have been realized often, or that any alternative measures to deal with the forces that stimulated these changes are likely to present themselves. Indeed, it is noteworthy that increased judicial supervision of litigation ― the feature of recent American development that sparks most controversy among academics ― appears to be an international phenomenon, and not just an American one.