509. Steven Shavell, Optimal Discretion in the Application of Rules, 03/2005; subsequently published in American Law & Economics Review, Vol. 9, No. 1, Spring 2007, 175-194.
Abstract: Discretion is examined as a feature of the design of rule‑guided systems. That is, given that rules have to be administered by some group of persons, called adjudicators, and given that their goals may be different from society’s (or a relevant organization’s), when is it socially desirable to allocate discretionary authority to the adjudicators and, if so, to what extent? The answer reflects a tradeoff between the informational advantage of discretion -- that adjudicators can act on information not included in rules -- and the disadvantage of discretion -- that decisions may deviate from the desirable because adjudicators’ objectives are different from society’s. The control of discretion through limitation of its scope, through decision-based payments to adjudicators, and through the appeals process, is also considered.