Theorizing Discretionary Informality in Law
Law King's College London London, UK
After decades of resistance, one suddenly sees the rise of discretionary informality in law, especially plea negotiation, sweeping the globe. Some time ago Franz Neumann suggested that rising discretionary informality in law was key in explaining liberalism's and the rule of law's inability to prevent the rise of National Socialism in Germany during the 1930s. Expanded discretion, he claimed, opened the courts to politicization. My historical study, Coercion to Compromise has linked discretionary informality, especially plea bargaining, to counter-revolutionary dynamics and reassertion of elite power in the transition from republic to democracy in America during the 1930s. In this paper, I theorize the relation of discretionary informality to changing contours of democratic politics, social conflict and transformative dynamics of political reaction today.