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Calculating the Standard Error: Just How Much Should Empirical Studies Curb Our Enthusiasm for Legal Standards?

Harvard Law Review Forum, Vol. 123, No. 92, 2011

18 Pages Posted: 25 Aug 2011  

Brian Sheppard

Seton Hall University School of Law

Date Written: June 20, 2011

Abstract

In her essay Inducing Moral Deliberation: On the Occasional Virtues of Fog, Professor Seana Valentine Shiffrin argued that the unclarity and uncertainty of legal standards as compared to legal rules should not be understood as defects. Shiffrin claimed that these features of standards actually foster citizens’ moral deliberation and democratic engagement with law. In this response, Professor Brian Sheppard suggests a more complicated approach to assessing the merits of different legal norms. Sheppard argues that in addition to the content of the norm — rule or standard — the species of the norm matters. Sheppard further claims that the presence of a conflict between the legal norm and another norm can make rules, as opposed to standards, better at inducing moral deliberation. Through this more complicated frame, Sheppard then reviews the empirical scholarship and suggests that Shiffrin scale back and fine-tune her claim about legal standards to make it more consistent with findings about how people actually respond to such standards.

Keywords: rules, standards, empirical legal studies, Shiffrin, legal philosophy, norm-content, norm species, social norms, moral deliberation, moral philosophy, Alon Harel, Yuval Feldman, Adam Cox, Thomas Miles, Fiery Cushman

Suggested Citation

Sheppard, Brian, Calculating the Standard Error: Just How Much Should Empirical Studies Curb Our Enthusiasm for Legal Standards? (June 20, 2011). Harvard Law Review Forum, Vol. 123, No. 92, 2011. Available at SSRN: https://ssrn.com/abstract=1916564

Brian Sheppard (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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