Friday, December 13, 2013

Abuse of discretion: unhelpful inherently inflammatory language

Over at Nota Bene, Jeffrey Lewis highlights 2/8's Justice Rubin's 14-page dissent/concurrence in a published opinion yesterday as very interesting reading about the abuse of discretion standard of review. Justice Rubin argues that the typical formulations of abuse of discretion -- “whimsical, capricious, arbitrary,” "exceeds the bounds of reason," "patently absurd" -- are not useful.
Image of Associate Justice Laurence D. Rubin"In applying the abuse of discretion standard in its various formulations cited earlier, I do so through the analytic framework suggested by Justice Weiner’s deference continuum, and mindful of Justice Richman’s conclusion that discretion must be exercised "in conformity with the spirit of the law" and not "defeat the ends of substantial justice."

Jeff, "great catch" for noting this dissent.