The Rule of Law and the Empirical Study of Rules
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Description
In his widely regarded article, “The Rule of Law as a Law of Rules” (1989), Justice Antonin Scalia argued that it is preferable for judges to adopt rules over standards. Rules can take many forms, but they tend to be clearer, have brighter lines, and be more easily applied than standards, which guide conduct or decide cases based on either vague criteria or an amalgam of factors. Justice Scalia recognized that deciding cases on the basis of rules versus standards can have deleterious effects. Rules, which paint with a broad one-size-fits-many brush, necessarily ignore the specifics of a particular case and thus achieve only rough justice. Bright-line rules are easy to apply, yet by definition they are over- and under-inclusive. So why favor rules? Justice Scalia defended his position with reference to rule of law values: clear rules minimize judicial discretion, increase predictability in the law, allow greater supervision of lower courts by high courts, and at least take a stab at increasing fairness by treating likes alike. While Justice Scalia’s argument is a normative one, there is much here for political scientists. Indeed, one is tempted to suggest that the single most profitable change in research agendas among political scientists would be to largely abandon the sort of inquiry that the editors of this volume, and organizers of a conference that led to it, call “judicial decisionmaking” (JD) in favor of rule of law (ROL) inquiries. The two projects are closely related. At the heart of both is the problem of judicial discretion. Both begin from the position that a certain amount of discretion is inevitable when judges decide cases. But while JD seems obsessed with identifying the specific basis for a judicial decision, and particularly with proving that judges are deciding on the basis of their own “attitudes,” the R OL inquiry seeks in a more fine grained way to understand what motivates various sorts of legal rules and how knowledge about judicial decisionmaking can be utilized to advance rule of law values. This chapter proceeds first by offering a critique of the JD project and identifying why it has a limited capacity to advance our knowledge in any way that has normative (or even positive) bite. It then turns the very elements of that critique of JD into a positive project regarding the rule of law, focusing on the distinction between rules and standards. Finally, it discusses what an R OL agenda might look like for studying clear rules and what that could do for the rule of law generally.
Source Publication
Making Law and Courts Research Relevant: The Normative Implications of Empirical Research
Source Editors/Authors
Brandon L. Bartels, Chris W. Bonneau
Publication Date
2015
Recommended Citation
Friedman, Barry, "The Rule of Law and the Empirical Study of Rules" (2015). Faculty Chapters. 630.
https://gretchen.law.nyu.edu/fac-chapt/630
