Picking battles: Correctional officers,rules, and discretion in prison

To outsiders, prisons vacillate between visions of regimented order and anarchic disorder. The place of rules in prison sits at the fulcrum between these two visions of regulation. Based on 131 qualitative interviews with correctional officers across four different prisons in western Canada, we examine how correctional officers understand and exercise discretion in prison. Our findings highlight how an officer's habitus shapes individual instances of discretionary decision‐making. We show how officers modify how they exercise discretion in light of their views on how incarcerated people, fellow officers, and supervisors will interpret their decisions. Although existing research often sees a correlation between “rule‐following” by incarcerated individuals and official statistics on such misdeeds, our data highlight that official statistics on rule violations do not easily represent the rate or frequency of such misbehavior. Instead, these numbers are highly discretionary organizational accomplishments. Our findings advance an appreciation for correctional officer discretion by focusing on the range of factors officers might contemplate in forward‐looking decisions about applying a rule and how they rationalize the nonenforcement of rules.     

Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

Against the background of the reinforcement of the EU executive pursuant to the post‐2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments. This distinction, which arises out of the current judicial paradigm for discretion, has contributed to the re‐allocation of executive authority within the EU (sanctioned in UK v Parliament and Council and Gauweiler v Deutscher Bundestag). The article traces the distinction's roots in legal conceptions that have shaped legal‐administrative thinking since the early days of the Etat de Droit or Rechstaat. It proposes a public‐interest‐regarding conception of discretion where, in an institutional context where courts’ reviewing role may be limited, discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision‐makers, rather than how courts may review an exercise of discretion.     

The Influence of Personal Values on Legal Judgments

The non‐legal factors that influence judicial decisions have been the subject of extensive debate. Theoretical and empirical work has focused on factors including political ideology, activism, attitudes, and demographics. Personal values are related to these factors and are central to decision making. The study described in this article translated theories and techniques from psychological research to examine the role of personal values in judicial decision making. A novel method of assessment of value expression in legal opinions revealed a different pattern of values expressed in the majority and minority opinions of a case that divided the Supreme Court. An empirical study of legal academics extended this analysis and highlighted the significant influence of personal values on legal decisions. The value:decision paradigm provides a new framework to analyse judicial decision making, judicial division, and judicial discretion and has significant implications for judicial diversity.     

中国语境下的暂缓起诉制度构建

暂缓起诉作为一种起诉裁量制度,是检察机关行使起诉自由裁量权的方式之一,在日本、德国、美国等国家及地区的司法实践中已有了良好的运行。我国检察机关在进行司法改革的过程中也探索着试行暂缓起诉。我们需要在借鉴国际上关于暂缓起诉的立法和司法运行经验的基础上,充分考虑暂缓起诉的诉讼价值,构建中国语境下的现代暂缓起诉制度。     

行政自由裁量权概念的迷思与匡正

行政自由裁量权概念的发达除客观需要之外,还有人为的因素,为行政扩张服务甚至为了逃避司法审查。然而,行政自由裁量权是一个可以被内化或转化甚至淹没的概念,虽然它是事先确定的一个指引但却是一个错误的指引。国家主权理论的衰微,行政权的弱化,行政种类多样,裁量空间的压缩以及部分裁量被“不确定法律概念”涵摄,行政自由裁量权风光不再。让行政自由裁量权概念在行政法领域尽快消失。以行政法的“裁量性规范”,将行政“裁量性事实”放在行政行为下考量,通过对其目的性、公益性以及合法性进行的判断,使其获得正当性基础。行政诉讼以是否应该作为、是否超越职权、是否滥用职权为司法审查内容,以确认判决、撤销判决、确认无效判决为判决方式,取消现行的变更判决。     

Contractual Discretion and Administrative Discretion: A Unified Analysis

While judicial control of discretionary power is at the centre of administrative law, it is a topic which has received little attention in contract. By tracing the development of the relevant case law in administrative law judicial review and in contract, the paper seeks to show how review in both contexts has converged upon a single core technique of control through decisional standards. The paper further argues that the consequent identity of method in public and private law review of discretion does not in itself weaken basic public/private law distinctions. While the territories of legislation and contract may overlap, they present basic differences as contexts for the exercise of judicial control of discretion, and these differences of context may weigh more heavily than identity of approach in determining the outcomes of litigation. ¹     

Sentencing Transparency in the Information Age

How unrestricted or restricted should judges be when deciding a sentence? To what extent should sentences be predetermined, or to what extent should judges be left with the right to decide a sentence in each individual case? Some legal systems, most notably in the United States, have chosen sentencing guidelines to control judicial discretion. However, another approach has been to use computer technology in the form of so‐called sentencing information systems (SIS). This article examines these developments and what possible influence they have had and could have in the Scandinavian, particularly in the Norwegian, context. Penal institutions today are adjusting to the demands of the information society. Does and could the fact that we are living in an increasingly technologically mediated world influence judicial decision‐making? The article argues that the use of technology is not simply a question of technological change, but is first and foremost a social and political phenomenon, related to the relations of trust in a society.     

Just Cognition: Scientific Research on Bias and Some Implications for Legal Procedure and Decision‐Making

Common law judges have traditionally been concerned about bias and the appearance of bias. Bias is believed to threaten the administration of justice and the legitimacy of legal decision‐making, particularly public confidence in the courts. This article contrasts legal approaches to bias with a range of biases, particularly cognitive biases, familiar to scientists who study human cognition and decision‐making. Research reveals that judges have narrowly conceived the biases that threaten legal decision‐making, insisting that some potential sources of bias are not open to review and that they are peculiarly resistant to bias through legal training and judicial experience. This article explains how, notwithstanding express concern with bias, there has been limited legal engagement with many risks known to actually bias decision‐making. Through examples, and drawing upon scientific research, it questions legal approaches and discusses the implications of more empirically‐based approaches to bias for decision making and institutional legitimacy.     

THE AVAILABILITY OF LAW

This article explores the practical skills that agents in the Massachusetts Attorney General's Office of Consumer Protection develop to accomplish their mandated objectives. In the situational structure and processes of discretionary decision making, we find a persistent surplus of enforcement capacity. Although the consumer protection law establishes a variety of sanctions and legal procedures to be used in enforcing the statute, agents frequently invoke infractions of other laws in the course of resolving consumer complaints. They have this flexibility only because laws, in general, are imperfectly enforced. This leaves scope in a particular situation for the invocation of a wide variety of potential violations of, for example, safety and building codes, zoning or license rules, and tax laws, all remotely if at all related to consumer protection. This article demonstrates the skill with which consumer protection officials exercise this discretion and argues that an adequate conception of the role of law ought to take account of the different ways in which law enforcement agents draw from this reservoir of un-enforced law.     

法官自由裁量权论纲

法官自由裁量权的行使是法律适用中的重要问题。本文从法理学的角度首先分析了法官自由裁量权存在的最基本动因,认为法律规则的固有缺陷是法官自由裁量权存在的最基本原因;随后在对法官自由裁量权的不同理解进行考察的基础上,对法官自由裁量权的内涵进行了界定;最后通过对法官自由裁量权运行的分析,指出直觉、知识、逻辑以及视域的开放是法官进行自由裁量时所涉及到的四个最基本的因素,而这四个因素被合理地组织到自由裁量的最基本过程。     

District Judges and Possession Proceedings

In this article, we draw on data obtained in interviews with District Judges about the factors which they say influence the exercise of their discretion in possession proceedings. Analysing the data set enabled us to create three ideal types of judicial decision—making which we have labelled 'liberal', 'patrician', and formalist'. We discuss the differences between each ideal type across five different variables: the District Judge role; approach; view of occupiers; the problem; behaviour of occupiers. Our data demonstrate a set of reasons to explain different approaches and outcomes between different District Judges (as well as the perhaps unlikely identification of a 'maverick' or 'idiosyncratic' style of judging). We conclude by suggesting on the basis of our data that, despite calls to structure or remove the discretion from District Judges, any such changes are unlikely to have much effect.     

Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia‐Herzegovina

The role of constitutional courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision‐making and, consequently, undermine judicial impartiality and independence. With reference to the decisions of the Constitutional Court of Bosnia‐Herzegovina, this article investigates the influence of ethno‐national affiliation on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court's decisions, we find that the judges do in fact divide predictably along ethno‐national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long‐term tenure does little to dampen the influence of ethno‐national affiliation on judicial behaviour. Moreover, our findings suggest that this influence may actually increase as a judge acclimates to the dynamics of a divided court. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.     

Discretionary review and undesired cases

Courts sometimes face cases that may result in adverse post-judgment official or public reactions. Such real-world repercussions—e.g., open defiance by public officials—can be more costly for the court than the benefit of hearing and deciding the case. In these situations the court may be better off not taking the case from the outset. This paper examines how courts deal with such cases when they can avoid adjudication—discretionary dockets. Using a stylized screening model, the paper examines the implications of such discretion. In particular, it shows that some undesired real-world outcomes are inevitable; and that broad control over their dockets should lead judges to take fewer cases in which the government is involved. Further, the paper discusses this logic from a comparative design perspective. The two prevalent models of judicial review, the American and the European, seem to take opposing stances on discretionary review; however, both narrow supreme courts’ control over their dockets, either by directly limiting their discretionary jurisdiction or by decentralizing judicial review.     

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.     

Trust Parties’ Uniquely Easy Access to Rescission: Analysis,Critique and Reform

Parties to trusts currently enjoy easier access to judicial avoidance of voluntary dispositions resulting from mistakes and inadequate decision‐making than other persons. The principal doctrinal basis for this advantage has shifted from the rule in Re Hastings‐Bass to rescission in equity. The article argues that this advantage is normatively unjustified, and recommends a uniform legal framework to govern the avoidance of voluntary dispositions resulting from mistakes or inadequate decision‐making, whether or not a trust was involved. Under this framework, dispositions resulting from laypersons’ mistakes and inadequate decision‐making should be avoided, subject to appropriate defences, whenever that causative nexus is present, while dispositions resulting from professionals’ mistakes and inadequate decision‐making should only be avoided where the mistake or deliberative flaw was so serious as to render the transferee's retention of property transferred unjust.     

Shadow Writing and Participant Observation: A Study of Criminal Justice Social Work Around Sentencing

The study of decision‐making by public officials in administrative settings has been a mainstay of law and society scholarship for decades. The methodological challenges posed by this research agenda are well understood: how can socio‐legal researchers get inside the heads of legal decision‐makers in order to understand the uses of official discretion? This article describes an ethnographic technique the authors developed to help them penetrate the decision‐making practices of criminal justice social workers in writing pre‐sentence reports for the courts. This technique, called ‘shadow writing’, involved a particular form of participant observation whereby the researcher mimicked the process of report writing in parallel with the social workers. By comparing these ‘shadow reports’ with the real reports in a training‐like setting, the social workers revealed in detail the subtleties of their communicative strategies embedded in particular reports and their sensibilities about report writing more generally.     

Police leniency in traffic enforcement encounters: Exploratory findings from observations and interviews

Despite the volume of time officers spend on traffic enforcement encounters, there was limited research exploring how they used their discretion in such interactions. Issues relating to police decision making patterns in the enforcement of motor vehicle laws were particularly salient in light of the on-going debate over racial profiling. This study examined how officers made decisions (in particular, to stop and to sanction) in the course of traffic enforcement. Using field observations and interviews with officers in a small midwestern agency, the authors described the factors and forces that officers used in making discretionary choices. The findings indicated that leniency in sanctioning was very common and that officers expected citizens to be contrite and acknowledge responsibility for their infractions. Implications for larger and more systematic observational studies are discussed.     

行政裁量权的诉权分析

规范行政裁量权需要通过诉权对行政裁量的内容进行控制。本文认为,通过诉权对行政裁量的控制,具有理论的基础与实践的优越性。但司法权对行政权的审查应保持一定的限度,不能对行政权过分干涉。因此,在司法实践中,法官应该对行政裁量的合理性进行审查。     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

正当程序:滥用程序权的判断标准

在缺乏有关程序的法律依据时,行政机关对程序拥有裁量权。行政机关对程序的裁量违反正当程序原则的,构成滥用职权。正当程序原则的合法地位源自《行政诉讼法》所规定的行政行为不得滥用职权。法院审查行政行为是否存在滥用职权的判断标准之一,是正当程序原则。上述规则的确立,经历了学说借鉴、政策回应、司法实践和法律确认的发展过程。