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Topic: Judicial discretion

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		I concluded that judicial discretion to strike prior felony alleged convictions was necessary to preserve the constitutionality of the Three Strikes Law and to temper the excesses of the legislature.
		Judicial discretion to strike prior felony convictions is not an "inherent power protected by the separation of powers doctrine.
		Judicial discretion to strike prior alleged felony convictions was necessary to temper the excesses of the legislature.
	www.csulb.edu /divisions/aa/projects/showcase/spring00/strikes (1675 words)

	Family Law Essays and Dissertations
		These discretions are in place to allow the court to ensure that both parties to the marriage are treated fairly with regards to their obligations to one another and their respective rights and those of any children of the family.
		The court also has discretion not to make a decree absolute based on the fourth fact if it is not satisfied that either the petitioner should not be required to make any financial provision for the respondent, or that that financial provision made is fair and reasonable 12.
		The court has discretion to order the local authority to investigate a child's circumstances 19, if it believes that a care or supervision order may be appropriate for the child, and if family proceedings are already taking place in the court.
	www.law-essays-uk.com /essaysamples/familylawessay/Judicial.htm (2309 words)

	Layla Shaheen Benefits of Judicial Discretion (Site not responding. Last check: 2007-10-13)
		The question to be addressed, then, is whether the judicial discretion is something to be minimized to the greatest extent possible, such as under originalism, or whether expanding judicial discretion of nonorginalism is desirable.
		While he admits “that the judicial process can be used by the rich and powerful to preserve their status and situation,” he concludes, “the least powerful in societyare better off with a judiciary where they have the possibility of being heard and receiving protection” (p.
		Discretion is essential, and inevitable, if the Court is to perform its task of adapting the Constitution to changing circumstances.
	www.layla-shaheen.com (1700 words)

	Judicial discretion - Wikipedia, the free encyclopedia
		Judicial discretion is the inherent power of the judiciary to make legal decisions according to their discretion.
		Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an important aspect of judicial independence.
		Where appropriate, judicial discretion allows a judge to decide a legal case within a range of possible decisions.
	en.wikipedia.org /wiki/Judicial_discretion (288 words)

	Evidence Coursework
		The concept of discretion, that is central to the understanding of the judicial process, differs from deciding a question by applying a fixed rule of decision in the way that the decision-maker is able to decide between alternative courses of action.
		The discretion to exclude evidence unfairly prejudicial to the defence owes its existence partly to the judicial mistrust of jurors.
		It was held in Murdoch v Taylor that the judge has the discretion to disallow the cross-examination and according to R v Powell, it is the prejudicial effect versus probative value principle that governs the exercise of the discretion.
	www.jasononline.com /law/evidence.htm (2113 words)

	Abuse of Judicial Discretion
		Within the private sector, discretion may be exercised by private officials, such as agents, trustees or corporate officers, who are in principle subject to the supervision of the courts.
		However, judges have abused their discretion by adopting the practice of requiring pleadings to be submitted to them by the litigants in writing, and not allowing copies to be provided the jury, nor allowing the attorneys to make legal arguments in the presence of the jury.
		The problem is that judges abuse their judicial discretion to protect themselves and other judges from civil and criminal liability for being unduly influenced, such as by bribery, intimidation or cronyism.
	www.constitution.org /abus/discretion/judicial/judicial_discretion.htm (1924 words)

	LawKT.com: Law Firm Publications on Judicial Discretion
		Judicial discretion Section 33 of the 1980 Act gives the court a discretion to disapply the limitation period in respect of personal injury claims having regard to certain factors.
		Thus, noting that the FTDA is subject to judicial discretion and the principles of equity, the court observed that if the defendant adopted the mark lawfully, the plaintiff may not be entitled to a remedy.
		Such an apportionment of responsibility among the five new republics was clearly not a matter of judicial discretion and required the consensus of all the republics concerned.
	www.lawkt.com /pubs/Judicial_Discretion.html (3603 words)

	The National Center for State Courts - Home Page (Site not responding. Last check: 2007-10-13)
		Judicial independence is the principle that judges should be free to use their best judgment to interpret and apply the law without fear of punishment.
		For example, legislatures have restricted judicial sentencing discretion via the imposition of mandatory sentencing structures, motivated by false impressions that judges are “soft on crime,” resulting in too many instances in which severe sentences are imposed for comparatively minor offenses.
		Within the field of judicial administration, there has come to be an understanding that the independence of the judiciary from intervention—warranted or otherwise—by the other branches can be best assured by the courts’ effective management of their own operations.
	www.ncsconline.org /WC/FAQs/JudIndFAQ.htm (1490 words)

	Discretion
		Discretion not to enforce is most damaging when it is unevenly exercised from case to case.
		Plea bargaining, which is an exercise of prosecutorial and judicial discretion, enables sentences to be tailored to both the offense and the offender.
		It renders prosecutorial discretion with regard to the type of plea involved meaningless thus forcing the prosecutor to revise his procedures to conform with the court's wishes.
	www.law.buffalo.edu /Academics/courses/561/materials/Discretion.htm (8824 words)

	Lawlink NSW: 6. Guiding Judicial Discretion (Site not responding. Last check: 2007-10-13)
		The premise is, of course, that judicial discretion remains an invaluable method of ensuring justice in individual cases, and this discretion must be retained.
		The assumption is that the exercise of judicial discretion necessarily remains important to the task of sentencing.
		Judicial education may use a variety of techniques, such as examinations of recent statutory and case law developments; case studies and sentencing exercises; and analysis of the philosophical principles of sentencing.
	www.lawlink.nsw.gov.au /lrc.nsf/pages/DP33CHP6 (7156 words)

	NACDL applauds Judicial Conference statement on judicial sentencing discretion
		The Feeney Amendment, which was enacted April 30, 2003, as an amendment to a popular child protection bill, calls for restrictions on the authority of federal judges to impose sentences outside the narrow range specified by the Federal Sentencing Guidelines.
		Without judicial discretion to tailor the punishment based on unforeseen circumstances, our criminal justice system metes out one-size-fits-all sentences that are frequently too harsh.
		A news release issued by the Judicial Conference notes the JUDGES Act, which is pending in both the House and Senate as H.R. 2213 and S. 1086, respectively, would repeal many of the provisions of the PROTECT Act that limit judicial discretion.
	www.nacdl.org /public.nsf/newsreleases/2003mn026?opendocument (368 words)

	Judicial Notebook: Second Circuit Increases Judicial Sentencing Discretion
		Judicial discretion was severely limited under the Sentencing Reform Act of 1984, which established guidelines designed to minimize judicial input in sentencing that was believed to result in unwarranted disparity among defendants with similar records found guilty of similar criminal conduct.
		As the Second Circuit noted, "[u]nder the totality test, 'when all is said and done, the conduct in question must truly be a short-lived departure from an otherwise law-abiding life.'" The Court states that their preferred standard achieves the balance between sentencing uniformity and judicial discretion that the guidelines intended.
		In this regard, it is noteworthy that research on the psychology of fairness has devoted relatively little attention to understanding the meaning of retributive justice (just desserts), as opposed to distributive and procedural justice.
	www.apa.org /monitor/mar99/jn.html (700 words)

	Frequently Asked Questions
		The Commission is an independent agency in the judicial branch consisting of six nonattorney citizens, two lawyers and three judges who review and act on complaints of judicial misconduct or disability.
		Judicial disability is a disability which is, or is likely to become, permanent and which seriously interferes with the performance of judicial duties.
		Because judges are expected to exercise discretion and because their legal decisions can be wrong without being unethical, proving improper motive, etc, as an ethical issue can be time consuming and difficult to prove.
	www.cjc.state.wa.us /About_CJC/faq.htm (2116 words)

	Mandatory Minimums in the Federal System - Human Rights Magazine, Winter 2004
		The U.S. Sentencing Guidelines were intended to replace unlimited and unreviewable judicial discretion with guided discretion, thereby also reducing unwarranted sentencing disparities, ensuring uniformity, and correcting leniency.
		The front-end disparity belongs to the government, and its discretion is unreviewable.
		Unlike the much-maligned departures, the application of the safety valve is not a function of judicial discretion.
	www.abanet.org /irr/hr/winter04/mandatory.html (2421 words)

	error of law
		"If a discretion is conferred by a statute upon an individual and he fails to appreciate the nature of that discretion through a misreading of the Act which confers it, he cannot and does not properly exercise that discretion.
		This is an "interpretive discretion": the interpretation of a question of law can be left in the hands of a public official or public body.
		Where the decisionmaker's power is "purely judicial", the court will be "slow to conclude" that the decisionmaker was intended to have exclusive jurisdiction to decide the statutory meaning.
	www.law.wits.ac.za /school/klaaren/interdis.htm (3092 words)

	Strengthening Judicial Capacity
		Additionally, there's a growing recognition, within Iran's judicial domain, of the need to strengthen the institutional capacity to supply court services in an effective, accountable, and predictable manner in ways contributing indirectly or directly to the prevention of future abuses of public office for private benefit.
		Enhancing judicial accountability became a crucial element of President Khatami´s re-election campaign in 2001 and ever since has been at the centre of the public's attention.
		The urgency of addressing the issue of lack of judicial accountability in Iran is not limited to ethical considerations only, but founds its soundest justification in the peculiar structure of the Iranian economy.
	www.unodc.org /iran/en/r34.html (906 words)

	Ronald M. Levin, "Vacation" At Sea: Judicial Remedies And Equitable Discretion In Administrative Law, 53 Duke L. J. 291 ... (Site not responding. Last check: 2007-10-13)
		This consensus further attests to the recognized capacity of the judiciary to use discretion to resolve remedial questions that the legislature is unlikely to have considered.
		One would expect the stereotypical "judicial activist" to be eager to set aside an administrative action that he or she has just found to be unlawful.
		In that sense, it is an expression of judicial humility.
	www.law.duke.edu /journals/dlj/articles/DLJ53P291.HTM (17606 words)

	A List Of Secret Canons Of Judicial Conduct
		We maintain judicial and prosecutorial discretion is doing whatever we damn well please within the judicially prudent guidelines we happen to be following at the time.
		We shall never promulgate awareness of the real legal issue regarding the use and review of judicial and prosecutorial discretion which is the process of reasoning used in the discretionary act's decision making process.
		We hold there is no judicial wrongdoing which can not be diminished by time, levels of hearings and precise dissection, categorization and delegation of related facts and responsibilities.
	www.caught.net /nwsltr/canons.htm (3134 words)

	A Matter Of Justice Coalition - for judicial accountability and responsibility.
		This should not really be called an abuse of judicial discretion because by law a judge has no such discretion, but it has emerged as a practice that undermines all the other protections of the Constitution.
		Both petit and grand juries are supposed to be selected at random from the community, a process called sortition, with some screening out of jurors who cannot be impartial or who have some hardships or critical duties.
		However, judges too often abuse their discretion to pack juries with persons who are partial in various ways.
	www.amatterofjustice.org /amoj/52articlespage.cfm?articleno=40 (1606 words)

	SSRN-The Return of Federal Judicial Discretion in Criminal Sentencing (Symposium entitled The Shifting Powers in the ...
		Judges ceded some of this enormous discretion by the early 1960s, as every state and the federal government permitted a parole board or probation agency to release a defendant after serving the minimum sentence imposed.
		I suggest that this five justice block hoped to revive judicial discretion in federal sentencing in the wake of what they considered the rude, disruptive, and unwise coup over criminal sentencing that Congress accomplished via the Sentencing Reform Act of 1984 and the Feeney Amendment of 2002.
		We will see a sharp, perhaps temporary surge of judicial discretion at the trial level in sentencing, used primarily to decrease the length of sentences, before federal prosecutors regain some (but not all) of their dominance.
	papers.ssrn.com /sol3/papers.cfm?abstract_id=704602 (744 words)

	3 Chief Justice Stresses Need for Judicial Independence
		If passed, the measure would eliminate judicial immunity for a bench officer upon a special grand jury’s finding that he or she made an abuse of judicial discretion—“basically just a ‘bad call’ in the view of the sponsors of this measure,” he said.
		He said he anticipated that the Judicial Council of California’s national conference on judicial elections next month would generate a “plan for action,” involving collaboration with the bar, that would keep the state’s courts as free as possible of inappropriate partisan politics.
		George later elaborated on both the judicial decision-making and election issues during a CJA question-and-answer session, conducted by Third District Court of Appeal Justice Vance W. Raye and San Diego Superior Court Judge Joan Lewis at the Monterey Plaza Hotel.
	www.metnews.com /articles/2006/geor101006.htm (906 words)

	[PRISONACT] Save federal judicial discretion
		The amendment was at= tached to child abduction legislation at the last minute in an effort to av= oid a debate of its merits and a discussion of its flaws.
		The amendment is designed to increase penalties imposed on persons se= ntenced in federal cases by limiting federal judges from exercising long-st= anding judicial discretion to mitigate the punishment even for first-time, = nonviolent offenders who have otherwise exhibited exemplary conduct, includ= ing military service and charitable works.
		The amendment was attached to child abduction legislation at the last= minute in an effort to avoid a debate of its merits and a discussion of it= s flaws.
	www.prisonactivist.org /pipermail/prisonact-list/2003-April/007011.html (1333 words)

	Yowell, Judicial Discretion in Adopting Legislative Standards: Texas's Solution to the Problem of Negligence Per Se?
		In negligence per se, the jury simply answers whether the defendant violated the statute and whether the conduct was the cause in fact of the accident. n36 The answer to the question of reasonableness under the circumstances is foreordained by the legislature.
		By adopting the Restatement position on judicial discretion, courts can maintain the tradition of negligence per se while preventing the inequitable results that some statutes threaten to impose.
		William Sommerville and Son, Inc., the court held that "it is well-established that the mere fact that the Legislature adopts a criminal statute does not mean this court must accept it as a standard for civil liability." n73 In Rudes v.
	cyber.law.harvard.edu /torts01/syllabus/readings/yowell.html (4470 words)

	* * * Understanding Judicial Immunity * * *
		If administrative officials in government are going to consider themselves "judges covered by judicial immunity," then they fit the definition of judges for purposes of J.A.I.L. However, by statute they do not fit the roll as a judge since they are forbidden to adjudicate constitutional issues.
		The statute clearly states that there is no exercise of discretion for a clerk to refuse to do her statutory job, nevertheless the judge in the case declared she was covered by judicial immunity.
		So if a court clerk, who has no discretion under law to adjudicate anything, yet enjoys judicial immunity, then she can be sued under J.A.I.L. You know what is going to happen.
	www.jail4judges.org /FAQ_File/WhoIsCovered.html (507 words)

	NLJ Roundtable: Federal judicial discretion
		The NLJ and Columbia Law School co-sponsored a roundtable on Nov. 18 on the Feeney Amendment, a measure passed this year that reduces the discretion of federal judges in sentencing criminal defendants under the Federal Sentencing Guidelines.
		There has got to be somebody that has the discretion to say, yes, that's an appropriate case for the typical dealer, but not this one.
		And I think that they will exercise discretion if they have it, to come to what they think is a fair result.
	www.criminaljustice.org /public.nsf/legislation/ci_03_53?OpenDocument (4782 words)

	Judicial Discretion - Norma Holloway Johnson USDJ D.C. [Free Republic]
		Judicial Discretion - Norma Holloway Johnson USDJ D.C. [Free Republic]
		Coble asks: "Did Judge Johnson abuse her discretion" and "should she have allowed the normal random case-assignment to occur?" In an August letter to the Washington Times late last year, Judge Johnson defended her actions.
		It was her responsibility to "move the docket as expeditiously as possible," she wrote.
	www.freerepublic.com /forum/a389ae655699f.htm (911 words)

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