On bright lines and discretion

[Steven D. Jamar]

Bright lines created by biased people do not favor minorities.

Fuzzy guidelines administered by biased people do not favor
minorities.

A hard-edged, non-flexible, non-discretionary rights-based approach is
not the best way to preserve liberty and community and other values of
our democracy.

There will be many instances in which clear rules handle the matter
well.  And where clarity is possible in light of competing concerns,
it is desireable.  To this extent I agree with Eugene.

But I do not think clarity is possible in many circumstances.  I do
not think a complete set of rules can be written with sufficient
generality and clarity as to accommodate the multiple interests
involved in speech and religious freedom.

There are places where discretion is valuable and needed.

But remember that discretion is not unlimited.  And if exercised
improperly or discriminatorily over a period of time, the bias can be
exposed and remedied.

Redlining, racial profiling, death sentence administration, and so on
can be exposed even though choice and discretion are involved in all
of them.

For the record, I would remove discretion from judges and juries for
the death penalty by making it illegal.


--
Prof. Steven D. Jamar, Director LRRW Program               vox:
202-806-8017
Howard University School of Law                           fax:
202-806-8428
2900 Van Ness Street NW
mailto:sjamar at law.howard.edu
Washington, DC  20008
http://www.law.howard.edu/faculty/pages/jamar

 "The return from your work must be the satisfaction which that work
brings you and the world's need of that work.  With this, life is
heaven, or as near heaven as you can get.  Without this - with work
which you despise, which bores you, and which the world does not need
- this life is hell."

W.E.B.  DuBois in 1958 on his 90th birthday