What do prosecutors and divorce court judges have in common?
Although this sounds like the start to a lawyer joke, I think examining the two groups together can yield interesting insights. One commonality is their wide and essentially unreviewable discretion. Prosecutors can decline to charge altogether or can choose which charges to bring. Divorce court judges often decide based on broad notions of fairness how to split a couple’s entire life savings, and also have power to prohibit parents from having overnight guests when they have physical custody of their children.
The literature on prosecutors is full of potential solutions to the perceived problems of unchecked discretion. One solution is to provide more judicial review. This has been a popular proposal in family law as well, where commentators seek more appellate review of trial court discretion. In my previous post, I explored ways of incorporating community input into family law decisions. This could be framed as roughly analogous to calls for various forms community policing or notice and comment sentencing.
Other reforms call on prosecutors to voluntarily develop guidelines. I want to explore what that might look like if translated to the family law context. Could judges band together and create local guidelines? The answer appears to be no. Below the fold I argue that, contrary to what most appellate courts have held, there are reasons to think that individual judges should be allowed to publically announce their personal rules of thumb and groups of judges should be allowed to publically create group rules of thumb.