A POSITIVE POLITICAL THEORY OF RULES AND STANDARDS

Abstract

How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will be likely to use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form as well as the value that judges place on legal obedience, we bridge the divide between the overt cynicism of legal realism and the credulity of much of the rules-standards debate. Our Article identifies the dominant factors in judicial decision-making, at both the higher and lower court level – legal obedience and political ideology. Within that framework, we show how six factors determine higher court choice over rules versus standards: political alignment within the hierarchical judicial system; the distribution of case facts; the inherent control characteristics of rules versus standards; the effect of overlapping doctrines; the extent that lower court discretion is unavoidable; and the effect of political heterogeneity on a multi-member higher court. * Herbert D. Kelleher Centennial Professor of Business Law, McCombs School of Business, University of Texas at Austin; Professor of Law, University of Texas Law School; Professor of Government, University of Texas at Austin. Email: crossf@mail.utexas.edu. ** Professor of Law, Northwestern University School of Law. E-mail: t-jacobi@law.northwestern.edu. *** J. Landis Marting Professor of Law and Business, Northwestern University School of Law. E-mail: tiller@law.northwestern.edu. ______________________________________________________________________ A Positive Political Theory of Rules and Standards 2 ____________________________________________________________________________________________________________________________________________

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