It is my belief that Critical Legal Studies Theory and Legal Realism do not provide normative views for a very particular reason. Both of these legal philosophies, as is my understanding, are trying to point out the failures and shortcomings of the legal system, and while doing this create clear examples of how and why the system has these faults. Although both philosophies differ on how to point out these faults, they both are very similar, or at least it appears so, in the fact that they do not believe it is possible to change the system enough, or have the ability to remove human biases, to actually alter the system and make the improvements necessary. It is this belief that no matter how we attempt to fix it, the same problems will always arise, the "if men were angles there would be no need for government" ideology, that leads both of Critical Legal Studies Theory and Legal Realism to be both non-normative and quietist. Although Critical Legal Studies Theory has issues with the Legal Realist method of empirical examination, I believe that the Critical Legal Studies Theory method is almost exactly the same, using previous information and data, combined with various other factors to develop decisions for the future, is just as biased and not truly empirical. I was personally shocked more at the similarities between Legal Realism and Critical Legal Studies Theory, rather than by their differences, which seems very small to me.

Discretion is all around us

Everywhere we go we use discretion, and see it being used. We see discretion in our legal system, and we use our own discretion everyday to make decisions. Discretion is used in our law in many different ways. Cops, lawyers, and judges, all use their own discretion and make decisions on how they should handle a certain situation they are faced with. Cops use their discretion on how to deal with people who break our law, whether that is by a simple traffic citation, or how to handle a felon. Also, judges use their discretion on people who show up in court and how the law applies to that particular situation. Some judges may swing their vote one way than another. For example, a woman who is battered by her husband, and is threatened with her life, in turn kills her husband, how do we sentence this woman? Do we charge her with a murder, or were her actions justified by self defense? What if this woman has kids and she felt that they were in danger. A judge looks carefully into this particular situation and decides whether to sentence this woman to life, or let her go because her life really was threatened. He uses discretion on how to sentence this woman. There is no doubt that in our judicial system, discretion is used. Even though we have a certain set of defined laws, discretion is used to justify the outcome of situations. There is no doubt that discretion is all around us.

Weekly Topic: What do Realists Want?

As noted in class and in your readings, Critical Legal Studies and Legal Realists in general have been severely criticized for their non-normative, "quietistic" approach to legal philosophy. Leiter explains the criticism vis-a-vis legal realism as concluding "quietists hold that since the core claim reports some irremediable fact about judging, it makes no sense to give normative advice--except perhaps the advice that judges 'ought' to do what it is they will do anyway" ("Legal Realism," 277).

Moreover, Critical Legal Studies seems to amplify the claim by criticizing the positive empirical method of legal realism for assuming the empirical realities, such as the way the legal system affects the distribution of wealth in society, that it should be criticizing or, at any rate, analyzing. Critical Legal Studies thereby forfeits any systematic or theoretically coherent basis for legal interpretation that it might otherwise claim. The result, as Tushnet sees it, is that the "dominant position" within CLS amounts to an "interminable critique" of attempts to construct systematic theories of law, legal theory and legal practice.

This week I would like you to discuss the rationale for the "dominant position" in CLS, identifying its relation to realism, its methodology and its possible value or lack thereof. For instance, how does the "dominant position" apply to Economic Analysis of Law or Feminist Jurisprudence? Why might someone prefer one approach to another, or at least find one more credible than another? What common strengths or weaknesses apply to some rather than others or all three, together, as representatives of the realist tradition of legal philosophy?

A Little Judicial Discretion

Judicial discretion plays a role in our legal system. Judges and juries have some discretion when it comes to deciding a case, but I feel this should be kept at a minimal level. If every case that came to the courts was decided just on the discretion of the jury or judge it would be hard for a legal society to exist. Not knowing how a judge would rule on certain situations would make it harder for people to follow the law and would eventually have no need for the law. This means there is definitely a need for positive law. People need to have written laws that they know they must follow or certain repercussion will be taken. Without positive law everything that comes across the judge’s desk would be up for interpretation. This could make the law not fair in the eyes of the people even if the judge is doing what they think is right. People are inherently bias towards certain things and I think this would show somewhere if decision were just made on judge’s discretion. That is not to say that judicial discretion is a bad thing and it should be banned. It just means that judicial discretion should be used minimally and should rules that it must follow. I There should be some kind of positive law that regulates judicial discretion.

I happened to have watched a video in my CAS class about a jury trial where the jury exercised there right to nullify the law in a particular case. The lawyer for the defendant asked the judge to inform the jury that they were allowed to decide against the law if they saw it fit. The judge decided not to because he felt that it would set bad precedent and could eventually led to anarchy. This is why I believe that judicial discretion is a good thing, but only when it is used in minimal instances.

Judicial Discretion

Judicial discretion is at the mercy of the Judge. Judges have to follow the positive or written law, but the interpretation of how the law should be applied to a certain situation is up to the Judge. Judges are in charge inside of the courtroom. Their decision can be amended in the court of appeals, but again the law is going to be interpreted by another judge. The law depends on legal executives to carry out and enforce the law. Judges represent the law and the government, so the decisions that Judges make tend to be fair and accurately enforce the law. The government can’t rule on every criminal or civil case, so they must appoint officials to carry out the law. Police officers apprehend the offenders of the law, but there needs to be a neutral party between the crime committed and the punishment. Also, the jury plays a vital role in a courtroom. The beauty of the jury is that it is made of a group of the defendant’s peers. Supposedly, the jury is on the same level as the defendant and can objectively make a decision, regarding the guilt of the defendant.

Judges & Jury Discretion

As much as we wish that the letter of the law was followed, I think, at least, exceptions have to be made. Thus enter judicial discretion in judges, as well as in jurors.
I recently watched a video in my law & rhetoric course where a mentally retarded man (who was previously convicted of a felony) broke probation by purchasing a handgun after seeing an advertisement in a magazine to become a detective. In this advertisement to become a detective, it stated that for one to become a detective he or she must own a gun. Following from this advertisement, the mentally retarded man, trying to make a living by becoming a detective, purchased a gun and registered the weapon; however, purchasing a gun, unbeknownst to the mentally retarded man, broke his probation. (Don’t ask me how a sporting goods store sold a gun to a mentally retarded man.)
Nonetheless, a few days after purchasing the gun, the mentally retarded man reported to his parole officer as required. During this meeting with the parole officer, the mentally retarded man showed the parole officer the detective advertisement, as well as the gun. Upon seeing this, the parole officer arrested the mentally retarded man and he was sent to court to be tried.
At the court hearing, the jury had a difficult decision to make: the mentally retarded man had technically broken his parole, however, did he really deserve the punishment for doing so (I believe if he was found guilty, he was sentenced to X number of years in prison)? Anyhow, after much deliberation, the jury found the man not guilty under the reasoning that while the man had broken the law, he did not do so intentionally, that is, he was not competent enough to realize that he had broken his parole (he thought he was trying to become a detective).
While the exact details of the case are somewhat askew in my memory, the point of the matter is that, yes, judicial discretion can—and should—be a good thing. While the letter of the law is important, following it 100 percent of the time can present problems.

Judicial Discretion is Key

Judicial discretion can be viewed as the cornerstone to our judicial system. Discretion is used in every step of the criminal trial process. The use of discretion varies by each step of the judicial process. Police officers use discretion when deciding if they should give a motorist a ticket or arrest a pedestrian for public drunkenness. Prosecutors use discretion when choosing whether or not to bring a case to trial. A prosecutor may also use discretion when plea bargaining cases. Judges use discretion in sentencing and can take all sorts of things into account including prior record, demeanor, and other aggravating/mitigating factors. Discretion is necessary for our court system to run smoothly. Plea bargaining is an essential tool used by prosecutors to keep the flow of cases moving throughout the court system. Judges must also use discretion because not all crimes and criminals are equal nor do they deserve the same punishment. For example, it is common for judges to give a lighter sentence to a criminal who has pled guilty rather than the criminal who pled innocent and was found guilty. The reason being is that it is often believed that admitting guilt is the first step to rehabilitation. As beneficial as discretion may be, its power may be abused and used as a means to enact prejudice.
Discretion is a double-edged sword. Discretion may allow a police officer to give you a warning instead of a speeding ticket. However, discretion may also allow police to use immoral tactics such as racial profiling.
Although I believe that discretion plays an essential role in our judicial system, I do believe that its use should be closely monitored in order to guard against injustice.