Legislative style and judicial discretion: The case of guardianship law

The criteria for appointment of a guardian, and the powers that the guardian will be given depend upon how a particular political entity balances respect for the individual's right to autonomy on the one hand, against society's desire to protect those who cannot manage their own affairs, on the other. In recent decades, the balance has tipped from concern about protection to concern about autonomy. This shift, in turn, has resulted in an evolution in the linguistic style of the laws enacted. This article examines many different guardianship statutes from around the United States, demonstrating that subtle linguistic maneuvers in the style of drafting affects the degree of discretion given to decision makers. Using advances in the psychology of concepts and categories, the article demonstrates the descriptive inadequacy of the classical distinction of rules versus standards in legislative drafting, and adds prototype-based laws and laws dependent upon enriched mental models to types of laws that legislators employ. The goal of the article is to build a self-conscious awareness of the tools available to policy-makers in their efforts to hone legislation in this important area of mental health law. (C) 2012 Elsevier Ltd. All rights reserved.