Humanizing the Rule of Law: a Judge's Discretion.

Lawsuits do not follow the scientific method. The system promotes justice, not actual truth. Juries (when they are used) are the Finders of Fact, and make all determinations about the facts of a case. With minimal oversight, jurors determine what happened. Judges answer Questions of Law, including jurisdiction, limitations, what laws apply and how to apply them. Questions of law can be reversed on appeal--they usually won't be, but you've got a shot. The same goes for a third set of determinations, those based on the judge's discretion. But when a judge uses his discretion, the standard of appeal is high. The appellant must prove the judge abused his discretion, a tough standard indeed.

But why does a judge have any discretion? What if we just applied the law the same way in every case? (Or do we already?) The answer is, Discretion is necessary because it allows for the infinite permutations in the facts of various cases. Things just do not work out the same way every time. As important as respect for the rule of law is, judges have to be allowed discretion in many matters. To illustrate, I thought rather than cite a boring ol' lawsuit, I'd tell a personal story--perhaps you will agree it is a situation in which discretion might have produced a better result....