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. Far less 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 recent 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 thus sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the (often unintuitive) consequences that result from the Court’s adoption of anti-rulification rules, while also offering practical suggestions as to when and how these rules should be deployed. Overall, the Article’s take is qualifiedly negative: Anti-rulification rules, while useful in some circumstances, carry the undesirable and often unnecessary consequence of cutting lower courts out of the lawmaking loop. And that in turn impedes the Court’s own ability to refine and develop its standards over time. The Court should therefore pronounce rules against rulification only sparingly, and lower courts should identify them only begrudgingly.


124 Yale L.J. 644 (2014)


United States, Supreme Court, Law -- Interpretation & construction, Precedent (Law), Rules, Court system

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