David L. Shapiro, Jurisdiction and Discretion 60 N.Y.U. L. Rev. 543 (1985)
![handle is hein.journals/nylr75 and id is 1569 raw text is: MOST INFLUENTIAL ARTICLES
investigate and present substantial mitigating evidence during the sen-
tencing phase of a capital murder trial. This is very good news for
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fendant's life be presented to the jury considering whether he or she
should live or die.
DAVID L. SHAPIRO, JURISDIcroN AND DISCRETION
60 N.Y.U. L. REv. 543 (1985)
Barry Friedman
Sometimes it is enough to state the obvious, especially in the face
of a dogged refusal on the part of others to see it. And sometimes the
obvious can be stated with such clarity and good sense that people
come to accept it for what it is. Such is the case with David Shapiro's
Jurisdiction and Discretion, only fifteen years old and already a
classic.
The critics of judicial discretion have been fierce, their rhetoric
strident. Abstention doctrines were attacked, justiciability doctrine
ridiculed. The argument against discretion rested in the seemingly
narcotic simplicity of separation of powers:°20 Congress was
charged with creating the jurisdiction, the courts with exercising it
consistent with Congress' commands. The great Marshall himself had
said: 'We have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given. The one or the
other would be treason to the [C]onstitution.'201
In the heat of this debate appeared the calm, thoughtful reason of
David Shapiro. Shapiro surveyed the field in meticulous detail and
overwhelmed his reader with the obvious: Discretion exists every-
where! Surely one cannot be serious in arguing that so many well-
established doctrines must give way.
From example Shapiro turned to justification, distinguishing be-
tween the appropriate exercise of principled discretion,202 and ad
hoc discretion, of which we must beware. According to Shapiro,
principled discretion is guided by factors such as equitable discre-
tion,203 federalism and comity,204 separation of powers,20s and
* Professor of Law, New York University. A.B., 1978, University of Chicago; J.D.,
1982, Georgetown University.
200 David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L Rev. 543, 544 (1935)
(citing Martin Redish, Abstention, Separation of Powers, and the Limits of the Judicial
Function, 94 Yale L-I. 71 (1984)).
201 Id. at 543 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)).
22 Id. at 578.
203 Id. at 579.
204 Id. at 580.
Imaged with the Permission of N.Y.U. Law Review
December 2000]](ViewImageLocal?handle=hein.journals/nylr75&div=49&collection=&method=preview&ext=.png&size=3)
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David L. Shapiro, Jurisdiction and Discretion 60 N.Y.U. L. Rev. 543 (1985)
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