Expanding Judicial Discretion: Between Legal and Conflict Considerations

M. Alberstein, Y. Sinai

Research output: Contribution to journalArticlepeer-review


Judicial discretion is usually considered a legal phenomenon, related to jurisprudential questions about the boundaries of rules, and the type of reasoning required from judges when making decisions in legal disputes. In this paper we expand the notion of judicial discretion to include considerations of conflict resolution as well as legal and extralegal (beyond the line of the formal law) considerations, and to incorporate critical assumptions regarding the limitation of the formal application of rules.
Our article determines which additional considerations the judge may take into account in judicial dispute resolution processes. How do these additional considerations operate alongside the regular formal legal considerations which are determined by the general rule? What are the limitations of judicial discretion in this context?
Our paper introduces an innovative model for understanding and conceptualizing judicial discretion as moving on two poles –legal and extralegal considerations, and conflict resolution considerations. We suggest that judges' decision making, especially considering the high rates of settlements today, may incorporate various perceptions of law, as well as various perspectives on conflict. We suggest five considerations for legal discretion: formal rules, equity, policy consideration, efficiency and social justice; and also five considerations for conflict resolution discretion: barriers to settlement, barriers to conflict resolution, relationship, identities, and narratives. We argue that judges' decision and processing of legal conflicts in general may adopt one mode of legal discretion in the shadow of another mode of conflict resolution consideration and vise-versa. This hybrid model expands the notion of judicial discretion familiar in legal literature so far.
With our new expanded notion of judicial discretion we hope that the role of law in promoting conflict resolution will become more articulated and institutionalized into new conceptual schemes of judicial work.
Translated title of the contributionהרחבת שיקול הדעת השיפוטי: : בין שיקולים משפטיים לשיקולי יישוב סכסוכים
Original languageEnglish
Pages (from-to)221-277
JournalHarvard negotiation law review
StatePublished - 2016


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