Judicial Discretion To Condition


The task of judging has been described as the art or science of making discrete choices among competing courses of action. Charged with the mandate to administer justice fairly and equitably, judges are said to have discretion to pursue any lawful course. In both criminal and civil cases, and regarding matters profound and trivial, the exercise of discretion is a core judicial function. The exercise of discretion is often characterized by vivid metaphors: judges confront a frame of possibilities, a zone, a range, a doughnut hole, two paths or a fork in the road, a fenced pasture.

Above all else, such metaphors convey that the exercise of discretion is about choice. For example, under certain circumstances a judge hearing a motion for a mistrial could have the discretion to grant or to deny the motion; the judge could choose either of two paths. In other instances, there might be a range of available courses of action from which to choose: for instance, upon a motion to exclude, as cumulative, the testimony of four additional witnesses, the judge could have discretion to exclude none, one, two, three, or all four of them. Or the discretion in a given instance could be a function of two determinants, such as when a sentencing range includes various combinations of prison terms and probationary periods—a set of options that the fenced pasture metaphor captures perhaps too well.

The adversarial process encourages litigants to take extreme positions, and judges may be generally or somewhat persuaded by an advocate’s argument in support of a motion yet prefer some intermediate or compromise position. By conferring discretionary authority, the judicial system entrusts judges with the authority to make sound and informed judgments about the relative merits of all the various lawful courses of action that fall within the frame of possibilities. The grant of authority is premised, first, on the notion that the trial judge is in the superior position to see, hear and evaluate the situation with firsthand knowledge. A second (albeit less exalting) justification recognizes that efficiency and finality in adjudication may be more important than accuracy in every instance. The “abuse of discretion” standard of review insulates certain exercises of discretion from rigorous reconsideration on appeal.

Metaphors notwithstanding, the exercise of judicial discretion does not always involve a choice among discrete, identifiable options. Consider, for example, the structural injunction: desegregating a school system, reforming a prison, or disassembling a monopoly demands ingenuity and inventiveness, rather than the wisdom to choose from among a finite set of options. The notion of so-called managerial judging presents another example; allocating system resources efficiently and shepherding litigants through the process expeditiously encourages proactive innovation. Similarly, judicial exercise of the authority to impose nonmonetary sanctions may require much creativity. In these examples, however, the tabula rasa must not be confused with carte blanche. Indeed, fear of judicial activism and of “individualism run riot” has made the exercise of judicial power in these and similar contexts especially suspect and highly controversial.

This article focuses on conditional orders—another exercise of the judicial imagination. As used here, conditions refer to provisions included in court orders that contemplate the performance of some other act or the occurrence of some event. For example, a judge might grant a motion to amend to add a new claim upon the condition that the movant agree not to seek a postponement of the approaching trial date; or a condition might require that the nonmoving party be compensated for all costs and attorney’s fees associated with the new claim. By incorporating conditions into their orders, judges can impose tailored or compromise solutions that ensure a more individualized justice. Conditions are thus an effective and very popular device to mediate a host of competing concerns and interests. Crucially, however, conditions also test the boundaries of judicial authority.

I will demonstrate that even in circumstances where a judge’s discretion might be sufficiently broad either to grant or to deny a particular motion, that discretion is not necessarily so broad as to permit a conditional grant (or conditional denial). Put another way, the greater does not includes the lesser. This notion that a condition could impose or induce obligations beyond a court’s authority has gone largely unnoticed. Although a few courts and commentators have touched upon discrete aspects of this phenomenon, no one has evaluated the authority to impose conditions as such. This essay begins to bridge that gap in the literature.

The first half of the essay familiarizes the reader with judicially-imposed conditions. Infinite in number and scope, such conditions can arise in every phase of any litigation matter. I chart this boundless universe of conditions using an analytical framework that explores the four primary incentives for judges to impose or induce conditions. This discussion includes conditions that are routinely applied by judges as well as those that may be only hypothetical.

Later parts of the essay then evaluate the use of conditions more broadly and consider the potential sources of authority for judges to impose them. Given the utility and ubiquity of conditions, the three sources of authority are surprisingly deficient or unclear: legislative authorizations are limited in scope and kind; the inherent authority of courts is largely preempted by legislative regulation; and party autonomy is a dubious source because consent may be only nominally voluntary. This want of coherent comprehensive authority to support the contemporary practice of conditional orders is a curious phenomenon.

The final parts of the essay locate that phenomenon within a larger jurisprudential context. Conditional orders offer judges a creative escape from rigid rules and predictable outcomes. This interplay between the norms of uniformity and individualized justice evokes the traditions of law and equity. That conditional orders are a contemporary manifestation of equity is, itself, an important observation. But even more significant is the suggestion that, in many instances, the forces of equity are at work even without formal authority. In a merged system of law and equity, conflict between the goals of certainty and individual justice has created an ambivalent attitude in the law toward equity, to which the law is attracted because of the identification of equity with a general sense of justice, but which the law ultimately rejects because of the law’s concern for certainty. In form, equity is preserved and codified as discretion, which reflects a shift toward fixed options and boundaries. However, in practice the spirit of equity may innovate and create, whether or not authorized. This dissonance invites an exploration of both cause and cure.



Date of this Version

April 2006