Discretion in Cultural Context
Files
Description
I invite you to join me in looking at the concept of discretion as it operates in the American system of civil procedure, not so much as a student of law but as a student of culture. After addressing the notion of the cultural study of procedural systems, I will describe some problematic aspects of the doctrine of discretion in American procedural law, focusing in particular on the opposition of discretion to law. I will argue that a resolution of these problems requires a recognition that the concept of judicial discretion, whish is classically distinguished from the concept of law, is in part a rhetorical construct rather than a decisional authority of a special kind. If this is so, such an account by connecting the rise of judicial discretionary authority in the twentieth century to two broader developments - the triumph of efficiency as an organizational pradigm and, second, the loss of faith in the Rule of Law and its attedant professional anxiety.
Source Publication
Discretionaire Bevoegdheid van de Rechter: Grenzen en controle = Compétence discrétionnaire du juge: Limites et controle = Entscheidungsspielraum des Richerts: Grenzen und Kontrolle = Discretionary Power of the Judge: Limits and Control = El poder discrecional del Juez: Limites y control
Source Editors/Authors
Marcel Storme, Burkhard Hess
Publication Date
2003
Recommended Citation
Chase, Oscar G., "Discretion in Cultural Context" (2003). Faculty Chapters. 1134.
https://gretchen.law.nyu.edu/fac-chapt/1134
