Understanding judicial discretion

The main aim of this paper is to clarify the dispute over judicial discretion by distinguishing the different senses in which claims about judicial discretion can be understood and by examining the arguments for these various interpretations. Three different levels of dispute need to be recognized. The first concerns whether judges actually do exercise discretion, the second involves whether judges are entitled to exercise discretion, and the third is about the proper institutional role of judges. In this context, the views of Dworkin, Raz, Perry, Greenawalt, and Sartorius are examined. Finally, it is suggested that a resolution of the judicial discretion controversy requires a satisfactory theory of the justification of judicial decisions.     

Discretionary Leniency and Typological Guilt: Results from a Danish Study of Police Discretion

Results from a qualitative study of police discretion in Denmark are presented. The aim of the study was to investigate the background for police decisions made on the spot, and to determine whether or not police discretion amounts to discrimination. Police discretion is analysed as two distinct forms of power, namely the power of definition/suspicion and the power of procedure/prosecution. The study shows that both forms are used in a discriminatory way, and it is argued that use of the power of suspicion results in discrimination. The power of prosecution, on the other hand, need not necessarily entail discrimination, but in practice it often does. The police discern between ?typical offenders' and ?decent citizens' and treat suspects differently according to type. The reason for this discrimination, it is argued, can be found in officers' notions of typological guilt , a form of ? alleged ? guilt that is independent of concrete evidence. Differences in the degree of leniency experienced by different types of suspect can be interpreted as vicarious punishment of the typologically guilty. The impact of this kind of police practice on police?citizen relations, and possibilities for improvement, are discussed.     

刑事司法裁量的边际均衡——从枪支认定标准与赵春华案切入

立足于真实的社会生活实践而不是想象的概念语词,能更好地厘清涉枪案件刑事司法面临的困境。经由枪支认定标准,刑事司法权力突兀地介入普通民众的正常社会生活,打破司法权力与公民权利的基本边际均衡,造成了刑事司法裁量的尴尬。刑法意义上的具有高度危险性的枪支,不应该与普通民众生产、经营、游艺所使用玩具枪、仿真枪的正常活动发生关联。刑事司法不侵扰普通民众的日常生活,这是刑事司法权力与公民社会利益的基本边际均衡。以一个侵扰公民正常社会生活的枪支认定标准为基础对涉枪案件进行“综合考量”,只会增加刑事司法的内部复杂性,进而造成刑事司法正当性的严重削弱。只有直面真实的社会生活实践,摒弃迷恋语词的法律形式主义思维,看重刑事司法的系统性后果,确定适宜的枪支认定标准,维护刑事司法裁量的基本边际均衡,才能有效化解涉枪犯罪司法治理的困境。     

制度正义视角下的司法自由裁量权

司法正义应从制度正义的内在视角进行分析,而制度正义一方面来自于立法设定,另一方面不能脱离法官自由裁量权的合理运行。法律判断与司法判断在本质上是一种规范意义上的价值判断。在既定法条件下,司法自由裁量权的合理运行必须以制度正义为基础进行思考。     

行政裁量:羁束与自由的迷思

在大陆法系行政法学中,行政裁量与羁束行政相对,又被分为羁束裁量和自由裁量。羁束与裁量的区分有其存在的必要,羁束裁量和自由裁量的区分在一定历史时期里也有其合理之处,但其间的区分标准并不清晰。随着司法审查的发展和人权保障理念的深化,这种区分日益相对化,故而我们需要走出这种历史类型的迷思,另寻其他更合理的认知路径。     

中国行政诉讼制度发展的新路向

我国现行的行政诉讼制度存在诸多缺陷,导致行政诉讼的功能未能充分发挥,有必要通过制度变革加以完善。应该设立行政法院,切实保证行政审判的独立公正;将行政机关之外行政诉讼被告的表述,从"法律、法规授权的组织"变更为"其他承担行政任务的主体";将部分行政规范纳入行政诉讼的受案范围;强化法院对行政裁量与行政解释的审查力度。     

Effects of Reducing Judicial Sentencing Discretion

This article uses a nationwide sample of state criminal cases to show the effects of reducing judicial sentencing discretion on disparities across rural-urban, southern-northern, black-white, and poor-nonpoor defendants. Judicial sentencing discretion is defined as the ratio between (1) the range in years within which a judge is allowed to sentence, and (2) the minimum number of years the judge must give when there is no probation. The data do indicate specific differences in sentencing between states of high judicial discretion and those of low judicial discretion, and the relationship of these disparities to discrimination is discussed.     

论行政自由裁量权及其法律控制

行政自由裁量权是行政权的重要组成部分,其行使是依法行政的难点。在我国,行政自由裁量权的运用较为广泛,由于诸多方面的原因,常常导致行政自由裁量权的滥用。因此,应以行政行为为核心,以外在控制和内在控制相结合为手段,对行政自由裁量权进行全面有效的监控,以期对行政执法环境的整体建设和实现法治国家这一既定的战略目标有所裨益。     

Rationing human life: health care reform and people with disabilities

Peter Singer has proposed health care rationing that includes an invidious discrimination against people with disabilities. Unfortunately, Congress has codified the potential for such discrimination in the 2010 Patient Protection and Affordable Care Act. But why should any public official have the discretion to treat the lives of people with disabilities as of "lower value" than the lives of anyone else. There must be a comprehensive limitation in the law against the misuse of comparative clinical effectiveness research to support the rationing of human life.     

Global Sustainable Development Governance: Institutional Challenges from a Theoretical Perspective

This paper submits that efforts to achieve sustainable development at global level call for, inter alia, institutional reform. It argues that there is no optimal institutional design, and that different schools of thought have different perspectives of the future. It briefly presents the history of institutional evolution in the area of sustainable development up to the latest developments in the context of the UN World Summit on Sustainable Development. This history sets the context for the rest of the discussions. It then presents a taxonomy of the various options suggested in the literature for improving the institutional structure of the United Nations in order to achieve sustainable development. This paper critically examines the feasibility of these options from the perspective of the different schools of thought in international relations theory. It argues that from the point of view of idealistic supranationalists, a hierarchic supranational environment and/or development organisation should be established to integrate and coordinate activities in the UN in order to promote sustainable development governance. It argues that from a realist/neo-realist and neo-liberal institutionalist approach, coordination, whether hierarchical or horizontal, is doomed to failure. From a historical materialist approach all efforts at institutional design are likely to lead to asymmetrical results reflecting global power relations. This paper concludes with a speculative argument that institutional design is not a question of the best architectural option, but calls for multiple pathways including strengthening of individual organisations, promoting the progressive development of the law of sustainable development, developing a high level advisory body to advise the Secretary General, promoting the concept of the decentralised network organisation and possibly finding ways to cluster regimes. The effectiveness of these multiple efforts are dependent on the support of civil society. In order for sustainable development to take the key concerns of developing countries into account, it is necessary that institutions are able to represent the variety of views of their members and that countries develop good policies domestically.     

Suing the Philadelphia Police: The Case for an Institutional Approach

Note: The comments of Alan Snyder, Eugene Lewis and the Editor and anonymous reviewers of Law and Policy are gratefully acknowledged.
This article examines the merits of two alternative briefs in Equal Protection litigation on police misconduct. The several suits brought against the Philadelphia Police Department illustrate the shortcomings of the judicially preferred intentionality brief and indicate the need for a more completely specified institutional brief. The background of the two briefs is traced to a dialectical conflict between discretion and control in the idea of law enforcement.
The use of force is not a philosophical issue for a policeman. It is not a question of should or whether, but when and how much (Rubinstein 1973:323).     

Legal Intermediaries: How Insurance Companies Construct the Meaning of Compliance with Antidiscrimination Laws

Existing empirical research suggests that human resource officials, managers, and in‐house counsel influence the meaning of antidiscrimination law by communicating an altered ideology of what civil rights laws mean that is colored with managerial values. This article explores how insurance companies play a critical and, as yet, unrecognized role in mediating the meaning of antidiscrimination law through Employment Practice Liability Insurance (EPLI). My analysis draws from, links, and contributes to two literatures that examine organizational behavior in different ways: new institutional organizational sociology studies of how organizations respond to legal regulation and sociolegal insurance scholars' research on how institutions govern through risk. Through participant observation at EPLI conferences, interviews, and content analysis of insurance loss prevention manuals, my study bridges these two literatures and highlights how the insurance field uses a risk‐based logic to construct the threat of employment law and influence the form of compliance from employers. Faced with uncertain legal risk concerning potential discrimination violations, insurance institutions elevate the risk and threat in the legal environment and offer EPLI and a series of risk‐management services that build discretion into legal rules and mediate the nature of civil rights compliance. My data suggest that insurance risk‐management services may sometimes be compatible with civil rights goals of improving equality, due process, and fair governance in workplace settings, but at other times may simply make discrimination claims against employers more defensible.     

A vulnerability analysis: Theorising the impact of artificial intelligence decision-making processes on individuals,society and human diversity from a social justice perspective

The article examines a number of ways in which the use of artificial intelligence technologies to predict the performance of individuals and to reach decisions concerning the entitlement of individuals to positive decisions impacts individuals and society. It analyses the effects using a social justice lens. Particular attention is paid to the experiences of individuals who have historically experienced disadvantage and discrimination. The article uses the university admissions process where the university utilises a fully automated decision-making process to evaluate the capability or suitability of the candidate as a case study. The article posits that the artificial intelligence decision-making process should be viewed as an institution that reconfigures the relationships between individuals, and between individuals and institutions. Artificial intelligence decision-making processes have institutional elements embedded within them that result in their operation disadvantaging groups who have historically experienced discrimination. Depending on the manner in which an artificial intelligence decision-making process is designed, it can produce solidarity or segregation between groups in society. There is a potential for the operation of artificial intelligence decision-making processes to fail to reflect the lived experiences of individuals and as a result to undermine the protection of human diversity. Some of these effects are linked to the creation of an ableist culture and to the resurrection of eugenics-type discourses. It is concluded that one of the contexts in which human beings should reach decisions is where the decision involves representing and evaluating the capabilities of an individual. The legislature should respond accordingly by identifying contexts in which it is mandatory to employ human decision-makers and by enacting the relevant legislation.     

Explaining the process of change taking place in legal rules and social norms: The cases of institutional economics and new institutional economics

This paper deals with the phenomenon of institutional change and has been conceived as an attempt to answer the following question: Can we retain theimage of institutional change contained in a theory when we replace a methodological foundation on which the theory was built by a different and alternative one? For an answer to be developed, special attention is paid to the contributions made by institutional economists (IE) and those made by transaction cost—new institutional economists (NIE). The question clearly shows that it is a paper on applied methodology rather than a survey on institutional change contributions. Because of that, its main purpose is not to increase our knowledge about the characteristics of real changes in legal rules and social norms, their causes, their processes, or their effects, though several examples are given of those institutionalist and new institutionalist contributions that analyze those changes. Our purpose is to investigate the way in which these two groups of economists approach the object of analysis already mentioned. Our conclusion will be that institutionalist and new institutionalist contributions are built on two different and mutually exclusive approaches because their respective methods of analysis (holism versus methodological individualism) are different and, above all, because they build their respective analyses on some concepts that are mutually exclusive (concepts showing power or nonvoluntary influences versus concepts showing voluntary transactions). Their analyses contain different and mutually exclusiveimages of the changes taking place in legal rules-formal institutions and social norms-informal institutions. Some comments about the limitations of the holist method of analysis are made in the paper.     

现代行政法上的指南、手册和裁量基准

本文以英国的"非正式规则"为参照系,结合我国实践和理论,逐一分析了指南、手册和裁量基准的效力、公开、制定主体和程序问题。指出它们对内因行政科层制而具有拘束力,对外呈现多样化的效力形态,应运用合法预期、"直接的权力因素检查"和相关考虑等理论,对其内容和条文逐个分析判断。它们提供了有益的裁量建构,只有公之于众,才能有效规范自由裁量。可以引入类似立法的程序予以控制,但要适度克制,避免其丧失灵活性。     

裁量基准公众参与模式之选取

公众参与作为一种直接的民意表达方式,可以提供类似议会立法一样的民主形式和内容,因而成为补充裁量基准正当性基础的首选方案。但是,基于裁量基准行政自制属性和行政成本的考量,它仍然不宜作为一项强制性义务强加给行政机关,而应由行政机关自主决定。实践中,行政机关应当以裁量基准的"质量要求"和"可接受性要求"为基本参考因素,比对相对人与自己的预期目标是否一致,根据其特殊性及实际情形,在"改良的自主管理决策"、"分散式的公众协商"、"整体式的公众协商"、"公共决策或共同决定"四种程度不同的公众参与模式中选择适用。     

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.     

MERGERS, STANDARD OF PROOF AND EXPERT ECONOMIC EVIDENCE

There is an increasing use of complex econometric modellingin EC merger control proceedings. The question is whether econometricsare subject to a standard of evidence similar to that applicableto facts and theories that the Commission traditionally usesand articulates in its merger decisions or whether there shouldbe some margin of discretion left to the Commission in the treatmentand handling of econometric evidence. In the former case, ECcourts would exert an intensive review of the Commission's useand articulation of econometric evidence. In the latter case,EC courts would adopt a rather deferential approach. While theissue has not yet been dealt with before EC courts, this articlesubmits that the Commission should use econometrics with cautionand, hence, should meet a relatively high evidentiary thresholdbefore admitting the results of econometric models into evidence.Several guiding principles of evidence are suggested, whichare not intended to negate the Commission's margin of discretion,but would, nevertheless, ensure that econometrics be subjectto a fairly high standard of proof.     

规制量刑权的路径探析

量刑权属于德沃金言下的弱自由裁量权，具有实现个案事实与刑法规范无缝对接、彰显社会正义与保障人权的价值。量刑虽是一项具有浓郁能动司法色彩的活动，但量刑权的行使却不能简单地基于正当、合理的名义。而是首先应遵循一套实体规则，这个实体规则以责任刑法为价值基础，背靠法律人经验，思维步骤符合认知规律且历经实践检验；同时为确保实体规则得以一体遵循，还须设置和运行量刑程序，最终促使法官判罚说理，提高司法信度和效度。