The ABA Journal has an interesting piece on a recent concurring opinion by Judge Richard Posner. It begins:
What has discretion got to do with it?
That’s one of the questions Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals asked in a May 17 concurrence (PDF) that criticizes legal jargon such as “abuse of discretion.” The “verbal formulas” in the majority opinion, Posner says, “are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for re-examination.”
The phrases, Posner says, load the dice against defendants. One example, he said, is “abuse of discretion,” the standard the majority used to review claims of error in jury instructions.
“Common as the term ‘abuse of discretion’ is in opinions dealing with appeals from district court decisions, I find it opaque,” he writes. “If the appellate court is persuaded that the trial court erred in a way that makes the trial court’s decision unacceptable, it reverses. What has discretion to do with it? And ‘abuse’ seems altogether too strong a term to describe what may be no more than a disagreement between equally competent judges—the trial judge and the appellate judges—that the appellate judges happen to be empowered to resolve as they see fit.”