Friday, February 22, 2008
I haven't found any catchy imagery for describing the abuse-of-discretion standard of review. The difficulty in articulating that standard is demonstrated in this oft-cited (88 times, according to Westlaw) definition from James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (citations omitted):
[Its] most obvious manifestation is in a failure or refusal, either express or implicit, actually to exercise discretion, deciding instead as if by general rule, or even arbitrarily, as if neither by rule nor discretion. Another way, crucial [in the case at bar], is by failure, in attempting to exercise discretion, adequately to take into account judicially recognized factors constraining its exercise. Finally, discretion may be abused by an exercise that is flawed by erroneous factual or legal premises.