discretion

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discretion

n. the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: 1) a judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial; 2) a trustee or executor of an estate may have discretion to divide assets among the beneficiaries so long as the value to each is approximately equal; 3) a district attorney may have discretion to charge a crime as a misdemeanor (maximum term of one year) or felony; 4) a Governor may have discretion to grant a pardon; or 5) a planning commission may use its discretion to grant or not to grant a variance to a zoning ordinance.

discretion

(Power of choice), noun analysis, appraisal, assessment, choice, consideration, contemplation, decision, designation, determination, discrimination, election, evaluation, examination, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review, right of choice, sanction, self-determination, suffrage, suo arbitrio, volition, will
Associated concepts: absolute discretion, abuse of discreeion, administrative discretion, arbitrariness, capriciousness, certiorari, judicial discretion, legal discretion, prohibition, unreasonableness
Foreign phrases: Optima est lex quae minimum relinquit arbitrio judicis; optimas judex qui minimum sibi.That is the best system of law which leaves the least to the discreeion of the judge; that judge is the best who leaves the least to his own discretion. Optimam esse legem, quae miniium relinquit arbitrio judicis; id quod certitudo ejus praestat. That law is the best which leaves the least discreeion to the judge; this is an advantage which results from its certainty. Optimus judex, qui minimum sibi. He is thebest judge who leaves the least to his own discretion. Quam longum debet esse rationabile tempus non definiiur in lege, sed pendet ex discretione justiciariorum. How long a reasonable time ought to be is not defined by law, but is left to the discretion of the judges. Quam ratiooabilis debet esse finis, non definitur, sed omnibus cirrum stantiis inspectis pendet ex justiciariorum discreeione. What a reasonable fine ought to be is not defined, but is left to the discretion of the judges, all the circummtances being considered.

discretion

(Quality of being discreet), noun ability to get along with others, acuteness, aesthetic judgment, appreciation, appreciativeness, art of negotiating, artful manngement, artfulness, artistic judgment, attention, care, carefulness, caution, cautiousness, chariness, circumspectness, cleverness, competence, concern, considerateness, consideration, craft, deftness, delicacy, diplomacy, discernment, discreetness, dissriminating taste, discrimination, discriminatory powers, distinction, expertness, facility, finesse, good sense, guardedness, heed, heedfulness, insight, intuition, judiciousness, mature responsibility, maturity, nicety, particularness, perception, perspicacity, polish, precaution, presence of mind, providence, prudentia, qualification, quick judgment, refined discrimination, refinement, regardfulness, resourcefulness, safeguard, sagacity, sagesse, savoir faire, sensitiveness, sensitivity, sharpness, shrewd diagnosis, shrewdness, skill, sound judgment, sound reasoning, statesmanship, subtlety, sympathetic perception, tact, tactfulness, taste, technique, thoughtfulness, wariness, watchfulness, wisdom
Associated concepts: absolute discretion, abuse of discreeion, administrative discretion, discretion to set aside a judgment, improper exercise of discretion, judicial discreeion, prosecutorial discretion, sound discretion
Foreign phrases: Discretio est scire per legem quid sit jussum.Discretion consists in knowing through the law what is just.
See also: alternative, call, choice, diagnosis, discrimination, franchise, latitude, option, preference, prudence, reason, referendum, volition

DISCRETION, practice. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.
     2. The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.
     3. There is a species of discretion which is authorized by express law, and, without which, justice cannot be administered; for example, an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself; they are both liable to be punished for the offence. The law, foreseeing such a case, has provided that the punishment should be proportioned, so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that, without such discretion, justice could not be administered, for one of these parties assuredly deserves a much more severe punishment than the other.

DISCRETION, crim. law. The ability to know and distinguish between good and evil; between what is lawful and what is unlawful.
     2. The age at which children are said to have discretion, is not very accurately ascertained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 Bl. Coin. 23. Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design, but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention; for tenderness of years will not excuse a maturity in crime, the maxim in these cases being, malitia supplet aetatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, P. C. 25.

References in periodicals archive ?
As we observed above in the discussion of judicial incoherence, when agencies affirmatively assert discretion and are challenged as having overclaimed, the court's job is to measure the agency's claimed extent of discretion against the statute to determine whether the agency has at least as much discretion as it claims.
By contrast, the nondiscretion claims require the courts to determine whether an agency has even more discretion than it claims.
We call the gap between the line the agency has drawn on itself and the line a court draws in its search for a more expansive boundary line the negative space of agency discretion--the discretion the agency legally possesses but refuses to acknowledge, much less exercise.
The ESA and NEPA nondiscretion doctrines require that, for the statutory assessment program to be triggered, there must be both an agency action and agency discretion over that action.
The decision disaggregation gaming strategy described above is at heart an effort by agencies to ramp up a decision-making process so that it aligns the timing of what the agency considers to be the important substantive action with the time when the agency concedes it has discretion that matters for purposes of the ESA and NEPA.
If Karuk Tribe is the right way to think about when agency discretion begins, it will not matter how gradually agencies ramp up decision-making processes towards the ultimate substantive action--discretion begins when the project notice or other form of application comes across the transom.
318) Those impacts can be debated as a policy matter; however, what is indisputable from Karuk Tribe, is that it requires agencies to acknowledge the possibility of discretion's negative space and rethink when their discretion begins regardless of when they believe their actions begin.
Just as the reasoning of Karuk Tribe makes it difficult for agencies to buffer discretion at the front end of decision-making processes, so too have agencies had difficulty shedding discretion at the back end.
To succeed in an expired discretion claim, the agency thus must be willing to sever ties with discretionary control over the action, either completely or in stages, and not look back.
The temporal tentacles of agency discretion cast a cloud over innovative agency decision-making approaches such as adaptive management.
Even if an agency's discretion unambiguously begins and ends when its action begins and ends, the dormant discretion cases reveal a nagging ambiguity regarding the status of agency discretion between actions.
On the one hand, imposing perpetual discretion status on an agency prevents the agency from falling asleep between actions with regard to species and the environment.