Document Type

Article

Publication Date

2011

Abstract

Justice Antonin Scalia titled his 1989 Oliver Wendell Holmes Lecture at Harvard Law School The Rule of Law as a Law of Rules.1 The lecture posed the sort of dichotomy that has become a familiar feature of Justice Scalia's jurisprudence and of his general approach to judging. On one hand are judges who recognize that the only legitimate means by which they may adjudicate cases in a democracy is to seek to do so through rules of general application.2 On the other hand are those judges who generally prefer to adopt an all-things considered balancing approach to adjudication.3 This latter species of judge is akin, he says, to King Solomon, deciding difficult constitutional questions based on some judge-empowering intuition.4

This dichotomy is familiar in both the literature and the case law. In her 1991 Harvard Law Review foreword, Kathleen Sullivan memorably distinguished between a "[j]ustice of rules" and a "[j]ustice of standards."5 A justice of rules prefers to issue legal directives that "bind[] a decisionmaker to respond in a determinate way to the presence of delimited triggering facts."6 The key word in this formulation is "delimited"-as Sullivan writes, "the rule's force as a rule is that decisionmakers follow it, even when direct application of the background principle or policy [that the rule captures] to the facts would produce a different result."7 A justice of standards prefers "to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation."8 Sullivan notes that the distinction in constitutional law between categorical approaches and balancing approaches is "a version of the rules/standards distinction." 9

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