There can be little doubt that, at least in the United States, a significant level of
discretion accompanies the role of judge. As evidence, consider, for example, the
writings of three prominent jurists. First, in a 1993 speech “What I Ate for Breakfast
and Other Mysteries of Judicial Decision Making,” U.S. Court of Appeals Judge
Alex Kozinski (1993, 993) argues that the existence of Legal Realism and Critical
Legal Studies1 proves “that even the silliest idea can be pursued to its illogical
conclusion.” He continues, “As I understand this so–called theory, the notion is
that because legal rules don’t mean much anyway, and judges can reach any result
they wish by invoking the right incantation, they should engraft their own political
philosophy onto the decision–making process and use their power to change the way
our society works.” However, despite such biting language, Judge Kozinski (1993,
996) acknowledges, “[While] there are more or less objective principles by which
the law operates, principles that dictate the reasoning and often the result in most
cases… these principles are not followed by every judge in every case, and even when
followed, there is frequently some room for the exercise of personal judgment.”