Friday, February 22, 2008
getting a handle on abuse of discretion
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.
How about "abuse of English" .....hmmmm wrapping cranial synapses around the hyper concise convoluted contortionistic platitudinal inferntial suppositions spontaneously leading to an effusion of eppiphanistical manifestion of visceral cognisance and the glutteral utterance of AHAH!
I remain beffudled yet whimsically enlightened by eloquent obfuscation through obtruse prose.
Posted by: C. Williams | Jun 2, 2008 2:32:00 PM