Have you ever driven 70 mph on a road where the speed limit is 65? Come on, don't be cagey—but also don't worry. Every law has a letter and a spirit. The letter of the law says “no faster than 65,” but everyone knows that really means 70. In fact, if everyone around you is doing 70, it can be unsafe to go under 65. The spirit of the law is not to maintain some precise speed but to keep everyone safe.

And yet: if you're doing 70, you are literally breaking the law. The police are perfectly authorized to pull you over and give you a ticket. But at just 5 miles above the speed limit, even if you’re breaking the law, you probably won't get in trouble for it. If there’s a traffic cop nearby, that cop will probably use their discretion and let you go. Of course that discretion can also be abused, e.g. by giving tickets to people they don’t like while let everyone else go their merry way. In other words, discretion can also be a recipe for acting on bias.

So do we, perversely, need rules about how to apply the rules? Not quite; what we need is judgment. Judgment isn’t something you can codify in an instruction manual. It’s the kind of know-how you get from experience. Of course that can backfire too. If you’re the kind of cop who targets people you don’t like, then the more experience you get the better you’ll be at targeting those people. So experience may not to solve the bias problem.

We know we don't want to live in Kafka’s world, where everyone is a faceless bureaucrat shuffling papers around, and if they make a mistake and send you to jail—whoopsie, too bad. But we also don't want to live in the world of Mad Max, where everyone takes the law into their own hands, where disputes are settled in the Thunderdome. Want want rules, and we want discretion when it comes to applying them.

The Thunerdome is actually a good example. in the world of sports there are referees and rulebooks, but the ref is the one who gets to decide whether the ball is in or out—at least in sports that haven't opted for machine-based instant-replay calls. It's not clear that the strict in-or-out determination of a robot judge makes for a better game in every sport, especially if you enjoyed watching John McEnroe yell at the line judge.

In fact, the tennis court is not the court that really matters. It's in the legal domain where discretion versus strict rule application can have life-changing consequences: in domestic violence statutes, in financial regulations, in immigration law. These aren’t games, and the last thing we want is judges settling cases using the Magic Eight Ball, making stuff up as they go along. They need to be using their discretion wisely, so training up a generation of judges with genuine wisdom becomes key.

These are some of the questions we raise with our guest: Barry Lam from UC Riverside, author of Fewer Rules, Better People: The Case for Discretion.