Rules Against Rulification

71 Pages Posted: 2 Feb 2014 Last revised: 27 Feb 2015

See all articles by Michael Coenen

Michael Coenen

Seton Hall University Law School

Date Written: December 1, 2014

Abstract

The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a rule: may lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.”

Rules against rulification are a curious breed: they promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the sometimes-unintuitive consequences that follow from the Court’s adoption of anti-rulification rules, while also offering practical insights as to when and how these rules should be deployed. Among other things, the Article points out that anti-rulification rules, while useful in some circumstances, can carry the surprisingly maximalist consequences of freezing the development of the law and constraining the methodological choices of lower court actors. In addition, the Article sets forth some prescriptive suggestions regarding the creation and detection of anti-rulification rules, proposing, for instance, that the Court should proceed cautiously before pronouncing rules against rulification and that lower courts should insist on express prohibitions from the Court before deeming themselves barred from the rulification endeavor.

Suggested Citation

Coenen, Michael, Rules Against Rulification (December 1, 2014). 124 Yale L.J. 576. Available at SSRN: https://ssrn.com/abstract=2388927 or http://dx.doi.org/10.2139/ssrn.2388927

Michael Coenen (Contact Author)

Seton Hall University Law School ( email )

1109 Raymond Blvd.
Newark, NJ 07102
United States

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