Hastings Law Journal


Beginning with the focus of Legal Realism on the importance of the judge's "hunch," judicial discretion has become a major topic for American legal theory. Two separate bodies of literature have developed, incorporating different perspectives on the subject of judicial discretion. This Article analyzes the nature of both the jurisprudential and procedural perspectives on discretion and determines that both are incomplete. Each asks questions that cannot be answered without reference to the other perspective. This Article reformulates the questions about judicial discretion and seeks to develop a new approach to thinking about discretion, by analyzing the assumptions implicit in the language judges use to justify particular kinds of discretionary decisions. Using this approach, it then develops a number of different models that demonstrate that different kinds of discretionary decisions may be justified on different normative bases and different assumptions about the appropriate roles of trial and appellate judges.

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