–by Samantha Pallini
Citation: McLane Co. v. EEOC, No. 15-1248, 2017 U.S. LEXIS 2327, at *17 (Apr. 3, 2017) (quoting Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971)).
The Supreme Court of the United States decided on April 3, 2017, that the Ninth Circuit Court of Appeals should review the decision of the district court, regarding the enforcement or rejection of an EEOC subpoena, for abuse of discretion.
In the majority opinion, Justice Sotomayor quotes a 1971 Syracuse Law Review article by Maurice Rosenberg, a 1940 graduate of Syracuse University and 1947 law graduate of Columbia Law School.
Rosenberg’s article, Judicial Discretion of the Trial Court, Viewed From Above, discusses the meanings and uses of judicial discretion, specifically with regard to “primary” and “secondary” forms of discretion. Primary discretion, he explains, is when an adjudicator has a wide range of choices; whereas, secondary discretion has to do with “hierarchical relations among judges.”
“If the word discretion conveys to legal minds any solid core of meaning, one central idea above all others, it is the idea of choice,” Rosenberg writes.