Conditions of Discretion, The

Conditions of Discretion, The

Joel F. Handler
Copyright Date: 1986
Published by: Russell Sage Foundation
Pages: 344
https://www.jstor.org/stable/10.7758/9781610442671
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  • Book Info
    Conditions of Discretion, The
    Book Description:

    This timely book is concerned with interactions between ordinary people and large public bureaucracies-interactions that typically are characterized by mutual frustration and antagonism. In fact, as Joel Handler points out, the procedural guidelines intended to ensure fairness and due process fail to take account of an initial imbalance of power and tend to create adversarial rather than cooperative relationships.

    When the special education needs of a handicapped child must be determined, parents and school administrators often face an especially painful confrontation.The Conditions of Discretionfocuses on one successful approach to educational decision making (developed by the school district of Madison, Wisconsin) in order to illustrate how such interactions can be restructured and enhanced. Madison's creative plan regards parents as part of the solution, not the problem, and uses "lay advocates" to turn conflict into an opportunity for communication. Arrangements such as these, in Handler's analysis, exemplify the theoretical conditions under which discretionary decisions can be made fairly and with the informed participation of all concerned.

    The Conditions of Discretionoffers not only a detailed case study, sympathetically described, but also persuasive assessments of major themes in contemporary legal and social policy-informed consent, bureaucratic change, social movement activity, the relationship of the individual to the state. From these strands, Handler weaves a significant new theory of cooperative decision making that integrates the public and the private, recognizes the importance of values, and preserves autonomy within community.

    "A masterful blend of social criticism, social sciences, and humane, constructive thought about the future of the welfare state." -Duncan Kennedy, Harvard Law School

    eISBN: 978-1-61044-267-1
    Subjects: Political Science, Sociology

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-xiv)
  3. 1 The Argument
    (pp. 1-16)

    We have witnessed profound changes in our legal culture during the past several decades. There has been an outpouring of statutory entitlements and procedural due process remedies covering diverse relationships—civil rights, welfare, education, mental health, environmental protection, occupational health and safety, consumer protection—between ordinary people and their government. There was the recognition that these relationships were valuable to people, that they were dependent on the relationships, and that they would suffer considerable harm if government acted arbitrarily. Reich (1964) captured the historical moment with the phrase, “The New Property.” He argued that government was constrained by the rule...

  4. PART I Critique

    • 2 Administrative Due Process
      (pp. 19-42)

      This chapter discusses the conceptual and practical failure of due process. I should state at the outset what I mean by the “failure” of due process and what implications are to be drawn from that indictment. In complex social changes there are never complete successes or complete failures, and this is certainly true of due process. I agree with Thompson (1975) that the development of the rule of law is one of humanity’s crowning achievements. Its procedural manifestation—due process—is also a grand achievement, both in ideology and in application. It has changed our conception of the fundamental status...

    • 3 Special Education and Adversarial Advocacy
      (pp. 43-78)

      Appropriate decision-making procedures have two characteristics: one is the ability to facilitate deciding substantive issues in a reasonably accurate and efficient manner; the other is the ability to determine whether there has been revelation and participation by the parties involved (Michelman 1977). In order to make an evaluation as to the appropriateness of the procedure or to make a persuasive case for an alternative, one must understand fully both the substantive questions at issue and the context within which these issues arise. A major criticism of the ideology of the adversary system is the failure to appreciate the social context...

    • 4 Special Education and Cooperative Decision Making
      (pp. 79-120)

      Special education has a procedural system that is based on high ideals, ideals beyond what the Supreme Court would probably have required in its most liberal days; yet, it is a system that only few can take advantage of. The question is whether different structures would increase participation, limit bureaucratic domination, and allow discretion to be exercised through shared decision making. This inquiry assumes little or no change in the socioeconomic conditions of the parents. The parents that I am concerned with belong disproportionately to minorities. It is also extremely doubtful, at least in the short run, that many of...

    • 5 Adversarial Advocacy: Reform or Reconstruction?
      (pp. 121-156)

      It was suggested in previous chapters that the failure of adversarial advocacy is not only a problem of lack of personnel and other resources (which will always be a serious problem) but that adversarial advocacy procedures are flawed conceptually. In this chapter I explore this latter issue more fully and address the next question: Should adversarial advocacy be reformed (is it capable of reformation?) or should different methods be used to achieve due process values in the discretionary continuous relation? Can various combinations of adversarial and nonadversarial procedures be used?

      We are commonly told that “due process of law is...

  5. PART II Construction

    • 6 A Theory of Public Action
      (pp. 159-192)

      In this chapter I discuss discretion in context, how and why discretion is created in most social welfare programs, particularly those that follow the common federal grant-in-aid structure. The example will be the development of the major special education legislation. This example (as well as dozens of others that could be selected) will show the importance of local and state actors, social movement activity, the manner in which the various actors at the three levels of government interact, and how discretion is created out of this process.

      There are two reasons for starting this way. First, it is important to...

    • 7 Organizational Change
      (pp. 193-226)

      Surely one of the most fundamental problems modern society faces is bureaucratization. “The two great German sociologists, Max Weber … and Robert Michels … were among the first to insist that the central political issue for all modern societies was no longer what type of economic structure prevailed—whether capitalist, socialist, or communist—but the increasing dominance of the public bureaucracy over the ostensible political leaders” (Scott 1981, p. 5; see also Burrell and Morgan 1979). Contemporary students of bureaucracy echo the same themes: “Although many critical problems face us today, most of the problems as well as proposals for...

    • 8 Social Movement Groups
      (pp. 227-262)

      Under the theory of public action, organizations of parents of handicapped children have two critical functions. One function is classic interest-group lobbying. Parent organizations would lobby, negotiate, supply information, and build coalitions. These functions would be performed throughout the entire policy-formation and implementation process—from the state and federal levels down to the school room. What is different, though, is the theoretical position of the parent groups. Under classic democratic theory, interest groups are only grudgingly tolerated; at best, they are a regrettable necessity, attempting to mitigate deficiencies in the representation processes. Traditionally, there has been a deep distrust of...

    • 9 Social Autonomy
      (pp. 263-308)

      The purpose of a theory of public action is to enhance the capacity of individuals for self-determination in the modern social welfare state. Our major concern has been with individuals. One of the great failures of the liberal state—and its contemporary manifestation, the legal rights revolution—has been its inability to halt the increasing powerlessness of the ordinary person. The state has expanded; more and more we are dependent on it; yet, less and less do we have meaningful control over the shape of our lives. The legal rights revolution promised redress. By establishing rights and procedural due process,...

  6. INDEX
    (pp. 309-327)