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The article describes the concept of discretion as one of the central concepts in the science of administrative law, further a parallel between the discretion existing in the government (so-called discretionary powers) and judicial discretion is drawn. Thus, the administrative body is obliged to apply its discretion in order to give the right of discretion and to comply with the statutory limits of discretion, if it is authorized to act in its own discretion. The proper application of the discretion by the administrative body may be re-examined within the framework of pre-trial appeal by the same administrative body or by a higher administrative body. The administrative body or the superior administrative body may, in particular, also assess the appropriateness of decisions and thus make other decisions, even if there is no doubt as to the validity of the original decision. In particular, in the case of pre-trial appeal, it is assumed that a new, independent assessment of the expediency of the actions of the executive body is carried out. In principle, this does not cause any legal problems with respect to the protection of trust, since the claimant itself, through filing a claim, prevents the entry of an administrative act into force, thereby preventing the consequent more difficult annulment. However, this becomes problematic in the case of the administrative court, since the courts, by virtue of the principle of separation of powers, have the right to check only the legality of the actions of the executive power, and not the expediency of its decisions. In this connection, the administrative court process limits discretion to verifying a discretion error only, rather than verifying whether an administrative act or refusal to publish or not to publish an administrative act is unlawful, whether the statutory limits of discretion or discretion have been violated have not been applied in accordance with the purpose of its provision. And a detailed description of the types of discretion and what there are errors of discretion. In conclusion, there are arguments for the existence of a discretion, since there are doubts about the susceptibility of decisions to corruption at its discretion.

Madison's argument, which attempts to state that the powers in foreign relations can be separated on principle, is in contrast to the arguments of Locke and Montesquieu that we have sketched as well as to the thrust of the Federalist. Our brief discussion of it does not do it justice, but is justified by the failure of the legislation under consideration to move in Madison's direction. The current legislation does not attempt to specify certain powers belonging to Congress as legislative in their nature, and others to the President as executive, but to limit discretion and share the remaining discretion among Congress and the President. It is thus more like the creation of an executive council. The views we have discussed raise three questions about this legislation. First, insofar as the legislation attempts to bring discretion under law, that is, to abolish some discretion, is it not an attempt to determine unilaterally what cannot be so determined? The occasion for the use of discretion in foreign affairs cannot be created by legislation, but depends on actions over which the President and Congress have a minimum degree of control. If circumstances arose that required the use of discretionary force but did not fit the congressional guidelines (and the legislation might even invite enemies to create such circumstances), the likely consequence would be a violation of law. The alternative would be a failure to act as the circumstances required. It can always be said that Congress could act through legislation or a declaration of war, but except in cases of great emergency, the very cases in which the legislation gives the President license to act, will it act with the dispatch that can seize the advantage of the moment? Secondly, to the extent that the legislation aims to include Congress in the exercise of discretion--not only, be it noted, in the commencement of hostilities but in its continuation and end--it attempts to create an executive council not only out of the Senate, as some proposed at the ...

Government officials in the exercise of discretion on laws and regulations, and in order to meet the demands of public service for the achievement of the people's welfare, then the proper government officials authorized discretion in the Organization of the Government. This research is useful for organizing Government accordingly with the nature, the purpose of the granting of discretion as well as the General principles of good governance. Type of normative legal research used in this research is normative law is also called doctrinal research. Doctrinal Research: Research which provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between rules, explain areas of difficulty and perhaps, predicts future development. Normative legal research conducted to assess the legal concepts related to the discretion of government officials who do. The target in this research related to: a. The nature and purpose of the authority of the discretion government; and, b. criteria for the use of government discretion.

International audience ; This paper develops a regulatory competition model to study whether and how refugee law should be centralized, and what are the consequences for refugees and for host countries. Varying refugee flows across countries lead some destinations to adopt strict measures. The resulting externality leads to a generalized "race to the bottom" of asylum law. Neither fixed nor minimum standard harmonization are found to be in the interest of both host countries. Especially the most popular destinations like EU border countries would suffer from losing discretion. However, minimum standards would benefit refugees and less popular destinations.

International audience ; This paper develops a regulatory competition model to study whether and how refugee law should be centralized, and what are the consequences for refugees and for host countries. Varying refugee flows across countries lead some destinations to adopt strict measures. The resulting externality leads to a generalized "race to the bottom" of asylum law. Neither fixed nor minimum standard harmonization are found to be in the interest of both host countries. Especially the most popular destinations like EU border countries would suffer from losing discretion. However, minimum standards would benefit refugees and less popular destinations.

The trend happening in the era of this autonomy is that replacement of structural officials always follows any change of both the Governor and the Regional Head of Regents and Mayors through rolling mechanism. Officials who are considered not to support in local elections or deemed to have no supporter will be stopped from their structural positions. While the officials who serve as team success in the local elections will be appointed as structural officials although they do not meet the requirements both in terms of rank, seniority, professionalism, experience and competence in any position.This study aimed at analyzing and explaining the effectiveness of administrative discretion in the appointment of personnel to structural positions. This research used qualitative descriptive research with a phenomenological approach. The results showed that the mayor administrative discretion is effective in interfering recommendation of Baperjakat or Board of Advisory Position and Rank on the recruitment process of personnel in structural position in order to get the structural officials who are not competent in the structural position they occupied in the City of Tomohon. DOI:10.5901/mjss.2016.v7n1s1p25

The history of US immigration policy and practice reflects a series of attempts to address complex political demands and organizational tensions. Yet this complexity has rendered comprehensive immigration reform elusive in recent decades. When legislative action appears impossible, what other avenues are available to confront these challenges? During the first term of the Obama administration, prosecutorial discretion emerged as a key mechanism. This article draws on archival data and interviews with immigration attorneys, advocates, analysts, and policy makers to understand better how prosecutorial discretion is used in immigration policy and practice today, why it came to have such a central role, recent challenges to its use, and what these tensions suggests for sociolegal scholarship on immigration. © 2014 American Bar Foundation.

The history of US immigration policy and practice reflects a series of attempts to address complex political demands and organizational tensions. Yet this complexity has rendered comprehensive immigration reform elusive in recent decades. When legislative action appears impossible, what other avenues are available to confront these challenges? During the first term of the Obama administration, prosecutorial discretion emerged as a key mechanism. This article draws on archival data and interviews with immigration attorneys, advocates, analysts, and policy makers to understand better how prosecutorial discretion is used in immigration policy and practice today, why it came to have such a central role, recent challenges to its use, and what these tensions suggests for sociolegal scholarship on immigration. © 2014 American Bar Foundation.

In order to strengthen the concept of municipal autonomy, this essay proposes an extensive interpretation of administrative discretion. Discretion is the exercise of free judgment given by law to authorities for performing official acts. This legislative technique seems to be suitable whenever the legislative is intended to legislate over the essential core of municipal autonomy. This way, an eventual abuse of that autonomy could be avoided, for the disproportional restriction of the local faculty to oversee the local issues. This alternative is presented as a tool to provide with dynamism the performing of administrative activities as well, aiming to assimilate public administration new practices. ; Con el objeto de enriquecer el concepto de autonomía territorial, el presente escrito propone una interpretación extensiva de la discrecionalidad administrativa. La discrecionalidad es la libertad de juicio y decisión que otorga la ley a las autoridades administrativas en el ejercicio de sus funciones, técnica legislativa que parece apropiada usar cuando el legislador quiera legislar sobre el núcleo esencial de la autonomía territorial. De esta manera se evitaría una violación de esa autonomía por la limitación desproporcionada de la facultad territorial para gestionar sus propios intereses. La alternativa se presenta también como una herramienta para dar más dinamismo a la acción del Estado, asimilando las nuevas prácticas de la administración pública.

This paper purports to apply the Kydland-Prescott framework of dynamic inconsistency to the case of fiscal policy, by considering the trade-off between output and debt stabilization. The Government budget constraint provides the link between debt dynamics and the level of activity, influenced by fiscal policy. Contrary to what happens in the monetary policy framework, however, a commitment is not always superior to discretion, even in the absence of uncertainty, but only when the public debt-GDP ratio is sufficiently large. The introduction of uncertainty, as usual, implies a reduction in the net benefit generated by the adoption of a fixed rule.

Equity, that ancient and amiable dowager of Anglo-American law, often appears to have ambled through the twentieth century free of the stress and strains that have belabored the common law. A closer analysis of the practice and logic of equity in the modern statutory context, however, undercuts that appearance of immutability. The resulting recasting of equitable doctrines has important implications, not only for equity theory, but also for contemporary legal analysis of administrative law, the relationship between courts and legislatures, and modern pluralistic democracy.

This dissertation will examine how street level bureaucrats (in this case, property managers) use their discretion to provide access to housing for permanent supportive housing facilities. Previous research has shown that there is a rate of 15-50% turnover in permanent supportive housing (PSH) facilities. What remains unknown is how decisions about client intake and eviction are made in such facilities. Case Study-qualitative methods such as field observations, unstructured interviews, and focus groups were utilized in order to understand the meaning of property manager discretion. Findings indicate that property managers' discretion is conditioned by policy context, task environment and organizational structure. Specifically, property managers evaluate whether or not to admit or evict residents based on agency expectations of them, which affect their working conditions. Agency expectations are constructed by organizational structures, which depend heavily on task environment and policy context. The social welfare implications to these findings are discussed.

We estimate the effects of a large program of public investment subsidies granted to Italian firms in disadvantaged areas. Projects were given numerical scores according to objective criteria and local politicians' preferences, and funded in rank order until the funds were fully allocated. We estimate that subsidies increased investment by marginal firms near the cutoff by 39 percent, and employment by 17 percent over a 6-year period. Building on recent advancements in the econometrics of regression discontinuity designs, we characterize heterogeneity of treatment effects and cost-per-new-job across inframarginal firms away from the cutoff. Employment grows more in smaller firms, but larger firms generated more jobs-per-euro of subsidy. Younger firms did better than older firms. Firms ranking high on objective criteria and firms preferred by local politicians generated larger employment growth on average, but the latter did so at a higher cost per job. Under a policy invariance assumption, we estimate that eliminating political discretion and relying only on objective criteria would reduce the cost per job by 9 percent, while relying only on political discretion would increase the cost by 55 percent. The effect of political discretion is larger in the south, which received the largest share of funds and exhibited the highest cost-per-job under the actual allocation criteria.

This article explores the topic of sentencing guidelines. Specifically, the author weighs the intended role of such guidelines against their role in actuality, noting the discrepancy between the two. The article concludes that it is up to the values and skill of those who implement the sentencing guidelines for their proper manifestation in the legislative process.

Discussion of prosecution reform is haunted by anachronistic conceptions of judgment and organization. These conceptions see professional judgment as inherently individual and ineffable and professional organization as inherently informal and opaque. The appeal of these conceptions is due in part to the assumption that the only alternative to the judgment and organization they prescribe is bureaucracy. In fact, post-bureaucratic forms of organization have become dominant in recent decades in several professions. They key elements of postbureaucratic organization are presumptive rules, root cause analysis, peer review, and performance measurement. Each of these elements can be found in recent reforms in prosecution, but the field, like the legal profession generally, lags other occupations. Although post-bureaucratic reforms are sometimes resisted as inconsistent with democracy, they are better understood as democracy-reinforcing.