Theory: Positive uses of discretion

On SSRN, "Independence, Autonomy & Impartiality: Normative Understandings and the Use of Discretion by Administrative Actors on the Ground" by Laverne Jacobs (Windsor). Abstract:

In this paper, the author examines the potential for administrative independence to be used as a site for promoting positive uses of discretion. Using field experiences drawn from an ethnographic study of the concept of "tribunal independence” in Canadian access to information and privacy commissions, the author argues that the type of independence labeled as institutional independence in the jurisprudence provides not only for the setting of routine administrative tasks such as the assignment of cases and sittings, it also denotes a much richer discretionary realm in which administrative actors use their discretion to set the foundational norms and values that guide all aspects of the decision-making process at their institution. This norm-setting element of institutional independence is highly influenced by the institutional culture of the administrative body itself.

Three examples from the Office of the Information and Privacy Commissioner/Ontario and the federal Office of the Privacy Commissioner are examined to illustrate how administrative actors’ normative understandings of the work that they do, coupled with understandings of independence, autonomy and impartiality may lead to results that garner varying degrees of public confidence. Theorizing from the empirical findings in the field, the author argues that the dialogic model of discretion, which requires administrative actors and the public to ensure authentic exchanges before discretionary decisions are rendered, should be expanded beyond the context of individual cases. By encouraging administrative actors to use a dialogic model as part of broader foundational norm-setting, there is a greater chance that the programmatic values set at this level will resonate with legitimate public expectations of fairness and the rule of law. Such a dialogic model is one tool that can be used in seeking to achieve good governance at the administrative level.

Thanks to Lawrence Solum's Legal Theory Blog for the pointer. EMM