Unfettered Discretion Research Articles

‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law

The late E.P. Thompson described himself as ‘a historian in the Marxist tradition’ But when he embraced the Rule of Law (in Whigs and Hunters, many of his colleagues on the left ostracized him as an apostate. This essay argues that Thompson's critics have largely misunderstood what he meant by the Rule of Law. His was a minimal and historical conception, which merely sought to distinguish states whose rulers had unfettered discretion from states whose rulers were constrained by legal rules, whatever their source and contents. Also, in contrast to other radical theorists, Thompson recognized that law would be a necessary institution in any complex society, no matter what its economic basis, to mediate social relations. The essay concludes with some thoughts about the relevancy of Thompson's conception of the Rule of Law for ongoing efforts to revitalize a more `radical liberalism'.

'An Unqualified Human Good': E.P. Thompson and the Rule of Law

The late EP Thompson described himself as historian in the Marxist tradition. But when he embraced the Rule of Law (in Whigs and Hunters), many of his colleagues on the left ostracized him as an apostate. This essay argues that Thompson's critics have largely misunderstood what he meant by the Rule of Law. His was a minimal and historical conception, which merely sought to distinguish states whose rulers had unfettered discretion from states whose rulers were constrained by legal rules, whatever their source and contents. Also, in contrast to other theorists, Thompson recognized that law would be a necessary feature of any complex society, no matter what its economic basis, for mediating social relations. The essay concludes with some thoughts about the relevancy of Thompson's conception of the Rule of Law for ongoing efforts to revitalize a more radical liberalism.

Security for Costs of Arbitration Proceedings in England, New Zealand and Australia

ALTHOUGH it is trite to observe that legal costs are of importance to all parties to arbitration proceedings, securing those costs from an opponent can prove a daunting task. Arbitrators, in contrast with judges, possess only limited powers to award security for costs with the result that parties frequently feel obliged to seek redress in the courts where in reality the risk of an unfavourable costs order is not equally shared. It is beyond doubt that a plaintiff has a choice whether or not to litigate, but a defendant is in a less advantageous position. In order to avoid default judgment, the defendant is compelled to litigate or settle, whether the plaintiff has available assets sufficient to pay the costs of a successful defence or otherwise. Courts have sought to strike a balance enabling impecunious plaintiffs to prosecute their claims while protecting a party who is brought to court against the possibility that the plaintiff, if unsuccessful, will be unable to meet an order for costs.1 Such a fine balance has been achieved through the exercise of an unfettered discretion to order security for costs based on all the circumstances of the case. This article is concerned with the powers of arbitrators and courts to award security for costs from parties to arbitration proceedings. An arbitrator can only derive power to award security for costs by agreement of the parties to a consensual submission2 or as a condition for the making of an interim award3 or stating a special case.4 In contrast the court derives jurisdiction to order security for costs in arbitration proceedings not through inherent jurisdiction, which by its very nature is limited to proceedings before a court,5 but by specific statute engaging the rules of court and associated inherent jurisdiction6 or …

Congressional Control of Supreme Court Appellate Jurisdiction: Why the Original Jurisdiction Clause Suggests an "Essential Role"

There has been considerable debate about the limits of Congress' power under the exceptions clause' to strip the Supreme Court of appellate jurisdiction. Some have argued that Congress may strip the Court of all its appellate jurisdiction, withhold jurisdiction from the lower federal courts, and thereby all but eliminate the judicial branch.2 Others have argued that the Supreme Court has an essential role that Congress may not destroy through exceptions.3 Still others have argued that the exceptions clause gives Congress unfettered discretion to distribute appellate jurisdiction among the federal courts-that is, to make exceptions in favor of other Article III courts.4

Refusing the Renewal of Sex Establishment Licences

The question of the scope of discretion when considering a renewal application for a licence, as distinct from the grant of an initial licence, was considered recently by the Court of Appeal in R v Birmingham City Council ex parte Sheptonhurst Ltd.1 The proceedings concerned an appeal by Sheptonhurst Ltd, operators of a national sex shop chain, against the refusal of judicial review of the decisions of four local authorities Birmingham, Bury, Norwich and Rushmoor refusing to renew licences for shops operated by the company. In all cases the authorities had refused renewal on the ground that it would be inappropriate having regard to the character of the locality where the premises were situated and, additionally in the cases of Birmingham and Rushmoor, on the ground that it would be inappropriate having regard to the use to which premises in the vicinity were put. The main issue for determination was whether the discretion to refuse to renew a licence was different from the discretion to refuse to grant a licence and if so what limitations there were on the discretion to renew. The applicants submitted that the discretion to renew was limited in that a licence holder had a legitimate expectation that the licensing authority would act consistently and fairly when considering a renewal application and that consistency and fairness required that renewal should not be refused unless there had been some change in the relevant circumstances or some overriding matter of public concern had emerged. Since the licences had not been refused at the outset when the applications were made, the authorities had presumably taken the view that the shops were not inappropriately located. The applicants accordingly contended that renewal could not subsequently be refused on locality grounds unless there had been some change in the character of the relevant locality or in the use to which premises in the vicinity were put. For three authorities, it was alleged that there had been some change (although this was disputed by the applicants), but in the case of Birmingham, where the shop was located in the Bull Ring Shopping Centre in the middle of the city, it was conceded that there had been no change. Nevertheless, the authority's Licensing Sub-Committee (which was differently constituted from previous years) took the view that it was not limited in its discretion on a renewal application, and was entitled to look at the matter afresh and determine whether the shop was appropriately or inappropriately located. This view was endorsed by the Court of Appeal, which decided that an unfettered discretion existed both for grant and renewal, the only difference being that there was an obligation to take into account that the applicant was an existing licence holder in the case of a renewal, and that no change of circumstances was necessary to justify refusal to renew. An authority would be justified in refusing renewal provided the grounds would have justified a refusal to grant a licence initially. There was no authority on the issue directly in point and reliance was placed on a number of authorities in the liquor licensing field. In R v Windsor Licensing Justices ex parte

Unfettered Discretion

Unfettered Discretion

The case for prediction in the modified desert model of criminal sentencing

This paper will argue the notion that what offenders are expected to do when they get out of prison is a legitimate concern in deciding how long to keep them in it. In terms popularized by von Hirsch and Hanrahan (1979), the Modified Desert Model of sentencing, which allows some role to such crime control devices as predictions of recidivism, will be argued to be superior to the unadulterated Desert Model, which does not. The arguments will be of both a negative and a positive sort. There will first be an attempt to demonstrate that the Desert Model, in its current state of development, fails to provide a selfsufficient scheme for assigning punishment to the individual offender. It will then be argued that crime reduction is not as irrelevant to the sentencing process as current liberal fashion would have it, but rather is an acceptable, albeit limited, determinant of the allocation of punishment. Finally, a preliminary decision-rule will be offered for determining which factors believed to be associated with recidivism should be taken into account in setting individual sentences, and to what degree. I would like to make clear at the outset that I am not in any sense advocating a return to unfettered discretion in setting sentence length, to indeterminate sentences, or to the primacy of predictive restraint. I pledge allegiance to the principle of commensurate deserts and to the sentencing reforms for which it stands. I feel sufficiently secure in my own credentials as a card-carrying justdeserter (Monahan & Monahan, 1977; Monahan, 1981; American Psychological Association, 1978), however, to suggest that it is not by desert alone that justice lives.

“Asylum” and “Refugee” in International Law

1. In the present paper I intend to discuss some developments in the practice of States granting asylum to certain categories of individuals, as well as the extent to which and the way in which this practice is influenced by the Convention on the Status of Refugees. “Asylum” is the protection a State may afford to an individual by letting him enter the territory of the State and allowing him to stay within it. A State has a nearly unfettered discretion to grant this protection to any alien it wishes. But the term “asylum” is not employed in ordinary cases of admission of aliens; it is reserved for cases where the alien in question has left his country for what may roughly be characterized as political reasons, and is admitted to another country.

Liberty Above Equality

Educational freedom does not consist in the right of every individual to use such economic advantages as he may happen to possess in order to secure special opportunities for himself and his children, or in the unfettered discretion of those who control educational resources to employ them to gratify their natural, but antisocial, egotism.... Those who have seen the inside both of lawyers' chambers and of coal mines will not suppose that of the inhabitants of those places of gloom the former are more constantly inspired by the humanities than are the latter, or that conveyancing is in itself a more liberal art than hewing. -R. H. Tawney, The Radical Tradition

Paroling Policy Feedback

Parole board members make two types of decisions about parole: individual case decisions and paroling policy decisions. The latter set the framework within which the former are made. Paroling policy decisions generally are not explicitly stated. The lack of clearly articulated policy guidelines has resulted in considerable criticism of parole board decision-making practices. This report describes a study being conducted in collaboration with the parole board members of the Youth Correction Division of the United States Board of Parole. The aim is to provide a feed back device capable of making more explicit the presently implicit policies used in making case decisions. A feedback device of this type may enable parole board members to: compare actual poli cies with those desired and take corrective action if indicated, reduce disparity in individual case decision-making by noting deci sions which appear to vary substantially from usual practice, and reduce the criticism leveled against the parole board as having unfettered discretion. The relationships between decision-makers' evaluations of four specific case factors (severity of the offense, institutional program participation, institutional discipline, and chances of favorable parole outcome) and paroling decisions are studied. From these relationships, a method of describing and articulating implicit paroling policy is demonstrated; and preliminary results concerning the relative weights given to the above factors in practice are described.

Ministerial Influence at the Canadian Immigration and Refugee Board: The Case for Institutional Bias

This paper explores the implications of Canada’s Immigration Minister Jason Kenney’s July 2009 comments on Mexican and Czech refugee claimants that accompanied the imposition of visas for these two countries. I argue that the Minister’s comments, in concert with his control over the tenure of Immigration and Refugee Board members, substantiate a claim that the Board is institutionally biased. While allegations of institutional bias have not fared particularly well in Canadian courts, I contend that the applicability of section 7 Charter rights distinguishes the immigration and refugee context, and makes success more probable. Specifically, I posit that the Minister’s comments have opened a window of opportunity to bring an end to the executive’s unfettered discretion over IRB reappointments, since the most effective remedy to address institutional bias would be amendment of the reappointment process.

Legal Norm and Discretion in the Police and Sentencing Processes

Professor Kadish examines representative occasions in which administration of the criminal law currently involves exercises of official discretion effectively isolated from judicial review and the rule of law. He finds the existence of such unfettered discretion to be a threat to basic values implicit in notions of due process of law, and concludes that although polar alternatives to discretion may be undesirable or illusory, criminal law enforcement can often be improved substantially by the imposition of legal procedures and standards upon the exercise of discretion.

Treaties, Executive Agreements, and the Panama Joint Resolution of 1943

A recent Congressional debate appears to have been one of the opening skirmishes on the question of whether the postwar commitments of the United States should be accepted by treaty or by unfettered executive discretion. On August 13, 1942, President Roosevelt transmitted to Congress a request for the passage of an enclosed draft joint resolution ostensibly “authorizing the execution of certain obligations under the treaties of 1903 and 1936 with Panama, and other commitments.” The President's message, after referring to the “thoroughly coöperative” attitude of the Panamanian Government in the present crisis and stating that “on March 5, 1941, the President of the Republic of Panama issued a manifesto making available for use by the United States certain defense sites in the territory of that Republic,” added that the time had come to make certain concessions long desired by the Republic of Panama. “Accordingly,” continued the message, “I deem it advisable that this Government convey to Panama the water and sewerage systems in the cities of Panama and Colon; that it relinquish its extensive real-estate holdings in the cities of Colon and Panama, so far as these holdings are not essential to the operation and protection of the Canal; and that it liquidate the credit of two and a half million dollars made available to the Republic of Panama by the Export-Import Bank for the construction of Panama's share of the Chorrera-Rio Hato Highway, a road essential to our defense requirements and constructed in accordance with standards made essential by these requirements.”

Named Lunar Formations

WHEN Galileo and his contemporaries examined the moon with the newly invented telescope, they found a surface covered with a variety of formations of which they made rough charts. To these formations there were added later the names of terrestrial objects as well as those of famous men, many of whom had no connexion with selenography or even astronomy. Hevel (1647) was the first to name lunar objects; his example being followed by other selenographers, who adopted the names already given, altered them, or added new ones according to their unfettered discretion. The whole structure of lunar nomenclature has thus been built up in a most haphazard way. Named Lunar Formations By Mary A. Blagg K. Muller. Drawn up by them for Commission 17 and approved at the Meeting of the International Astronomical Union held at Cambridge, Massachusetts, in 1932. Vol.1: Catalogue. Pp. xii + 196. Vol. 2: Map of the Moon. By W. H. Wesley and Mary A. Blagg, based on the Fiducial Measures of S. A. Saunder and J. Franz. Pp. 15. (London: Percy Lund, Humphries and Co., Ltd., 1935.)