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The Tension Between Rules And Discretion In Family Law: A Report And Reflection, Carl E. Schneider

Articles

The history of law is many things. But one of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law. It is probably impossible to practice family law without wrestling with the imponderable choice between rules and discretion. Consider, for example, how many areas of family law are now being fought over in-just those terms. For decades we have lived with an abundantly discretionary way of resolving …

Eroding The Myth Of Discretionary Justice In Family Law: The Child Support Experiment, Jane C. Murphy

All Faculty Scholarship

Reliance on judicial discretion to resolve disputes is one of the most fundamental characteristics of the American legal system. Nowhere have judges exercised more unfettered discretion than in family law. Judicial discretion in this area, however, is not without its critics. In this Article Professor Jane Murphy recommends limiting the use of judicial discretion in family law matters. Professor Murphy argues that the lack of predictability which flows from discretionary decisions undermines our confidence in the equity of decisions and encourages protracted litigation.

Professor Murphy reviews the developing consensus that fixed rules are necessary to guide judges' discretion in divorce …