Enforcing Rules Versus Enforcing Standards

28 Pages Posted: 22 Mar 2021 Last revised: 12 May 2021

See all articles by Nicholas Almendares

Nicholas Almendares

Indiana University Maurer School of Law

Michael D. Gilbert

University of Virginia School of Law

Rebecca Kerley

University of Virginia, School of Law, Students

Date Written: March 15, 2021

Abstract

Comparisons between rules and standards often involve enforcement costs. According to conventional wisdom, rules are cheaper to enforce than standards. We identify an additional trade-off by exploring an inverse proposition: not enforcing a rule is costlier than not enforcing a standard. Failing to enforce a rule—not bothering to punish minor infractions—reveals a lot about the government’s enforcement costs. Regulated parties can use this information and violate law to a certain extent with impunity. Failing to enforce a standard reveals less information, and this can lead to greater compliance with the law. This result does not depend on risk aversion among regulated parties. We identify the specific characteristics of standards that yield this effect.

Keywords: rules and standards, enforcement, enforcement and learning, exceptions

Suggested Citation

Almendares, Nicholas and Gilbert, Michael and Kerley, Rebecca, Enforcing Rules Versus Enforcing Standards (March 15, 2021). Virginia Public Law and Legal Theory Research Paper No. 2021-17, Virginia Law and Economics Research Paper No. 2021-07, Indiana Legal Studies Research Paper No. 439, Available at SSRN: https://ssrn.com/abstract=3804864

Nicholas Almendares

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Michael Gilbert (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Rebecca Kerley

University of Virginia, School of Law, Students

1400 University Ave
Charlottesville, VA 22903
United States

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