Source: Dissertation Abstracts International, Volume: 78-11(E), Section: A.

Adviser: Kate Stith.

This dissertation focuses on the problem of discretion. It explores the various ways that discretionary decisions can be structured so that they will advance the principles that animate a particular system of law. If individual actors have too much discretion. then they can substitute their own values for those of the system. If individual actors have too little discretion. then they will not be able to make decisions that preserve important system values. This dissertation explores different strategies for expanding, taming, and rationalizing such discretion. There are two main strands to this dissertation. each of which deals with the problem of discretion in a different area of law. The first two chapters focus on the American law of constitutional remedies. The remaining two chapters focus on the American criminal justice system.

Chapter 1. "Choosing Constitutional Remedies," considers what judges should do in situations where there is more than one way to fix an unconstitutional statute. I argue that there are two different approaches. One approach. "Editorial Restraint," holds that judges should assume as little power to change legislation as possible. It posits a sliding scale of judicial interventions---adding language to a statute is worse than striking down language. which is worse than striking down an application. which is worse than adopting an avoidance interpretation. The other approach, 'Purpose Preservation," focuses instead on finding whatever remedy best preserves the legislature's goals. I show how the American doctrine of constitutional remedies sometimes follows the logic of Editorial Restraint, and sometimes the logic of Purpose Preservation, and I ultimately defend Purpose Preservation as the superior approach.

Chapter 2. "Constitutional Avoidance as Interpretation and as Remedy," provides a new take on the avoidance canon. I argue that constitutional avoidance should be bifurcated into two different judicial tools: (I) a canon of construction, and (2) a remedy that changes the meaning of unconstitutional statutes. The latter of these avoidance as a constitutional remedy---justifies courts' power to effectively rewrite statutes through avoidance interpretations. A court that finds a statute unconstitutional can creatively 'reinterpret' that statute in a way that changes its meaning in order to fix the constitutional violation. just as a court can strike down statutory language. strike down applications, and impose other remedies that change the statutes meaning.

Chapter 3. "Sentencing and lnterbranch Dialogue." considers the problem of how judges' sentencing discretion can coexist with formal sentencing guideline systems. The basic conflict is between individualization and uniformity. As a general matter. sentences decided by judges will be individualized but not uniform. and sentences decided by guideline planners will be uniform but not individualized. I argue that we should transcend this dichotomy between judicial and guideline sentencing, and design sentencing systems around the principle of dialogue between judges and guideline planners. The basic idea is that sentencing guidelines should periodically he updated to reflect judges' actual sentencing practices. while at the same time judges sentencing practices should adapt to fit the guidelines. Such dialogue can take place through a variety of institutional forms, including both advisory and presumptive guideline systems.

Chapter 4. "Prosecutorial Constitutionalism," argues that prosecutors have an obligation to use their discretion to preserve defendants' constitutional rights even in situations where judicial doctrine does not require doing so. The sources of this obligation are twofold: the professional ethical duty to "do justice." and the departmentalist duty to independently interpret and enforce the Constitution. The difficult question is how to balance this obligation against prosecutors` role as adversary advocates for conviction. I argue that prosecutors should step away from their adversary role and become quasi-judicial enforcers of constitutional rights in situations where the adversary system fails defendants. This happens. for example, when prosecutors unilaterally control the relevant right (e.g., during plea bargaining negotiations or grand jury proceedings), and when judges cannot adequately enforce the relevant right because judicial remedies are retrospective and incomplete (e.g.. when exculpatory evidence is not revealed to the defendant or when defense counsel is inadequate).