University of Pennsylvania Law School; Bar Ilan University - Faculty of Law
Brooklyn Law School
March 15, 2014
Columbia Law Review, Vol. 115, 165-209 (2015)
Cardozo Legal Studies Research Paper No. 421
U of Penn Law School, Public Law Research Paper No. 14-7
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a staple in economic analysis of the law, as well as in legal theory in general.
The Essay seeks to contribute to the jurisprudential literature by unveiling a new form of legal command: the catalog. A catalog, as we define it, is a legal command comprising a specific enumeration of behaviors, prohibitions, or items that share a salient common denominator and a residual category — often denoted by the words “and the like” or “such as” — that empowers courts to add other unenumerated instances. We demonstrate that the catalog formation is often socially preferable to both rules and standards and can better enhance the foundational values of the legal system. In particular, catalogs are capable of providing certainty to actors at a lower cost than rules, while avoiding the costs of inconsistency and abuse of discretion inimical to standards. Moreover, the use of catalogs leads to a better institutional balance of powers between the legislator and the courts by preserving the integrity and autonomy of both institutions. We show that these results hold in a variety of legal contexts, including bankruptcy, torts, criminal law, intellectual property, constitutional law, and tax law — all discussed throughout the Essay.
Number of Pages in PDF File: 47
Keywords: legislation, jurisprudence of rules and standards, dichotomy of rules v. standards, catalog’s structure and subject matter, strong and weak discretion, family resemblance, criminal law, torts, constitutional law, tax law, evidence, ubiquity of catalogs, interpretation,legislative and social benefits
Date posted: March 21, 2014 ; Last revised: January 17, 2015