Discretion is a pervasive phenomenon in legal systems. It is of concern to lawyers because it can be a force for justice or injustice: at once a means of advancing the broad purposes of law and of subventing them. For social scientists the discretion exercised by legal actors is an important form of decision-making behaviour, in which legal rules are merely one force in a field of pressures and constraints that push towards certain courses of action or inaction. This book presents a variety of analyses of legal discretion by lawyers and social scientists (drawn from both sides of the Atlantic), who have made discretion and its uses a central part of their scholarly concerns.
Discretion is a matter of scholarly interest for both lawyers and social scientists. This work uses contributions from both fields to explore some of the central issues involved of discretion by legal actors - those making decisions in the exercise of an authority conferred on them by law.
Part 1 Issues in the use of discretion: the use of legal discretion - perspectives from law and social science; discretion and rules - a lawyer's view; discretionary decision making - a jurisprudential view. Part 2 Social processes in the use of legal discretion: the myth of discretion; social limits to discretion - an organizational perspective; discretion in a behavioural perspective - the case of a public housing eviction board; organizational horizons and complaint filing; big bang decisions - notes on a naturalistic approach. Part 3 Thinking about the uses of discretion: administrative justice - discretion and procedure in social security decision making; discretion - power, quiescence and trust; the jurisprudence of discretion - escaping the legal paradigm.
this book is now the standard for inquiry on discretion and the law. No legal scholar will be able to ignore its challenge to the conventional wisdom, nor will any social scientist want to begin research on the subject without it * Law and Politics Book Review Vol 4 no 7 (July, 1994) *`Rarely ... is the concept of discretion examined thoroughly. The 11 essays in this volume are a valuable exception.' The IARCA Journal`a valuable publication, which presents a convincing claim to be the last word on its subject' Public Administration`This collection is a scholarly examination of legal decision-making. It brings together an impressive group of contributors from the UK and the USA. Each essay must be read independently. As a whole this book paints a broad picture of the centrality of discretion and the organizational, economic, historical and social basis within such discretion is exercised.' LCCJ Newsletter'it is likely to serve as the standard work of reference on approaches to the study of discretion for some time to come...This is critical scholarship at its best - incisive, insightful and pointing the way towards a new approach to a by now familiar problem. Everyone interested in the study of discretion should read it.' * Social and Legal Studies *Anyone seeking to refine their understanding of the exercise of discretion, its advantages and disadvantages, and the effect of a discretionary approach as opposed to use of a rule or some intermediate standard, will find this book extremely helpful. * Mary Massaron Ross, Appellate Practice Section Newsletter, Fall '99 *