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The Problem of Judicial Discretion, 36 J. of Leg. Educ. 481 (1986)


Martin Golding has performed a useful service for us by describing in summary form many of the main themes that have been at the center of American legal theory over the course of the last century. From the range of topics that he describes, I would like to pick out one for special emphasis and to say a word or two about it. I pick this particular topic because its persistence in American legal philosophy as a subject of controversy and debate has itself been, in some ways, a distinctive feature of our jurisprudential tradition. The American obsession with the problem that I am about to describe is, I think, peculiar to our legal culture and an interesting question, though not one I shall try to answer, is why that should be so. Why should we have been so preoccupied—at times, it seems, almost obsessively—with this particular problem rather than with any of a number of other issues that might as reasonably have claimed our attention?

The problem that I have in mind is the problem of judicial discretion, a problem that is posed by Holmes's characterization of adjudication as a form of legislation. In "The Path of the Law," Holmes asserts that a judge deciding cases must, of necessity, act as a legislator since the applicable legal rules cannot conceivably constrain him in the way the Langdellian conception of law as a system of deductive propositions suggests it does. There is always some discretionary space (Holmes didn't say always, but his realist followers in the 1930s did) in which the judge enjoys freedom of movement, freedom to decide that the case before him calls for the application of one principle or policy—one legislative program—rather than another, a discretionary space in which the judge's decisional processes are not and cannot be mechanically predetermined by the applicable rules of law.

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