Discretionary Justice: A Preliminary Inquiry

by Kenneth Culp Davis

"The book is a carefully considered, ably articulated, and closely reasoned call for a redirection of attention, thought, and research. This is why it is a pioneering and significant contribution to the literature of law, jurisprudence, public administration, and political science."--Virginia Quarterly Review

233 pages, Hardcover

First published April 1, 1969

Reviews

[Masha Bunina · Rating 3 out of 5]

A classical book that became one of the turning points in legal studies, despite its insightful ideas, was written in a wishy-washy way. It gave me the feeling that I was reading and rereading the same idea throughout the entire book.

The core argument posits that the exercise of discretionary power—personal power to make decisions—by governmental agencies holds more significance than the formal process of adjudication and formal rules.

As early as the 1960s, Davis claimed that the only prospective way to bring justice to the system was to shift attention from developing perfect rules and principles to the individuals wielding power over individual cases. Davis suggested initiating this shift from police officers and prosecutors and extending it to all administrators and decision-makers involved.

However, pinpointing those responsible for specific outcomes often leads to easy blame for abuse of power or incompetence, which can be a significant oversimplification. Concerning public defenders, it's worth mentioning how evidence of sex trafficking can be incorporated into case documentation.

[Gregory · Rating 3 out of 5]

The author's point that many government agencies exercise too much discretion is well taken, but the examples are flung far and wide from across the spectrum: the Federal Communications Commission, Federal Trade Commission, probation and parole, criminal prosecutors, immigration and visa hearings, and the regular old police officer. This overly broad scope corresponds to a perhaps overly broad definition of "justice." An interesting aside that is mentioned is that in many cases, although discretionary judgements are appealable in one fashion or another, in practical terms there is no reasonable means to do so. Would probably be 4/5, but suffers from very dated references and cases. The point could have been more concisely summarized.