Rules, Standards, and Discretion — We can array legal norms along a spectrum, from crisp rules (e.g., a marginal income-tax rate specified in the Internal Revenue Code) to fuzzy standards (e.g., the reasonable-care standard in tort). Sometimes, we approach legal-norm application not by stating a norm, but by designating someone to exercise informed, discretionary judgment. This seminar explores the complexities that follow from the foregoing observables. Consider the following illustrative questions:
- When should a norm designer choose a rule, and when a standard? And does the answer turn on whether the norm designer is a legislature, an executive administrator, or a judicial tribunal?
- When should a norm applier pull toward the rule end of the spectrum, and when toward the standard end? And does the answer turn on whether the norm applier is an administrator or a judge?
- How can discretion be squared with the rule of law? Is it more important that discretion be guided by a preexisting framework? Or is it enough that, even if unguided, the discretionary judgment be explained with reasons?
- Are any rules defeasible? Are all rules defeasible? If so, are there really only standards?
- Is stare decisis best thought of as a rule, a standard, or a matter of discretion? What difference does the answer make for the rule of law?
The works of legal philosopher Frederick Schauer will feature heavily in our readings. Evaluation will be by a semester-long writing project; students can use the project to meet the capstone writing requirement. Whatever your favorite substantive area of law may be, in this seminar you can reflect more deeply on its rules-standards-discretion internal structure by writing your project in that subject-matter area.