How do judges exercise discretion in their rulings? Will the scope of discretion expand or become narrower? And how does the law limit judicial discretion in various contexts? These questions form the basis of this article. Initially, I clarify the definition of judicial discretion used here, distinguishing between viewing discretion from the perspective of ideal law and positive law, as opposed to the perspective of the actual law as implemented by the courts. In the second phase, I map the various motivations influencing the judge in rendering her judgment, which include the moral motive (what is right to rule), the legal motive (what the law instructs to rule), and the psychological motive (the interests, biases, and personal traits of the judge). Building on this foundation, I analyze in the third phase the forces acting on judges as they expand, limit, or maintain judicial discretion. My argument is that the typical direction of discretion is towards expansion, as it is easier to let discretion ‘out of the bottle’ than to put it back in. Against this nature of discretion, there is a tendency to preserve the status quo (in its broad sense) which slows the process. The article concludes by outlining several concrete aspects that influence how the development or change of the law, whether through legislation or adjudication, is expected to limit judicial discretion. These aspects relate to distinctions between complex rule systems and specific narrow rules; the relative strength of the different motivations of judges; and the institutional characteristics of various courts.

Forthcoming in Mechkarei Mishpat. The full paper is available in SSRN.