Judging Discretion

This paper was delivered in October as the inaugural Hon. Stephanie K. Seymour Lecture at the University of Tulsa College of Law. The lecture addresses the issue of finding a meaningful definition of discretion in judicial decisionmaking, using the lens of current issues in federal sentencing law as a working example for the review of discretion in practice

Judging Discretion: Contexts for Understanding the Role of Judgment

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

In Good Conscience: Expressions of Judicial Conscience in Federal Appellate Opinions

This article explores judicial references to what judges may or may not do, in their own words, “in good conscience.” It assesses the most common situations in which federal appellate judges use this term and it discusses the propriety of different uses and placements of those expressions of conscientious commitments that play into judicial decisionmaking. It distinguishes between expressions of primarily institutional conscience (that is, the commitment to certain institutional values, responsibilities, or limitations on what the judge may do) and expressions of primarily personal conscience (that is, the commitment to the individual values or beliefs of the judge who expresses the matter of conscience). Having explored these categories of expressions, and the muddy middle ground between them, the article discusses questions of the legitimacy of conscience as an input to judicial decisionmaking and as a matter for open expression