I tell my law students that you cannot get through law school without knowing your general approach to the rules versus standards debate. So many legal questions turn on whether you prefer the (1) simplicity, clarity, predictability, and fairness of rules, or the (2) flexibility, complexity, and justice of standards.
Rules create bright-line tests that apply exactly the same to everyone, in a fair and predictable way. The problem, however, is that rules don’t allow for the case-by-case analysis of standards, which provide more flexible, balancing-type approaches that give judges discretion to determine what’s right in a given situation. Rules make things fair; standards may make them just. Rules may also be over- or under-inclusive, sweeping up people into the rule who don’t belong, or not including people in the rule who should belong there.
Some examples. Negligence is a standard. Generally, a jury determines if the defendant fell below the standard of care of a “reasonable person under the circumstances.” The jury can factor in the specifics of each case, but defendants can’t easily predict (except in extreme cases) how a jury will rule. Plus, under the negligence standard, different juries will often render different verdicts in similar cases. Of course, judges may sometimes craft rules within this standard – such as “breaking a law designed to keep people safe creates a presumption of negligence.”
Age of majority is a rule. Citizens cannot vote until they are 18. This is a clear, bright-line test that applies equally to everyone. However, this rule may be over- or under-inclusive. Some 17 year olds are mature enough to vote, and some 50 year olds may be irresponsibly exercising their civic duty.
While bemoaning society’s seeming abandonment of the possessive apostrophe in informal writing, I realized that the rules versus standards debate works for grammar as well. A friend argued that apostrophes are beneficial in formal communication, but are unnecessary when attention to them is not worth the effort because they aren’t adding much clarity. This approach would involve a standard – people should use apostrophes when beneficial – with an embedded rule – apostrophes indicate the possessive form as distinct from the plural, and perhaps the embedded rule that formal writing requires proper use of apostrophes.
In the law, some issues benefit from rules treatment and some issues benefit from standards treatment. The Fourth Amendment, for example, is interpreted using a variety of rules and standards, but ultimately its touchstone is a standard: the reasonableness of the search. No one is perfectly a rules person or a standards person. However, it’s good (and fun) to know your general temperament. Take this quiz to see where you fall on the spectrum, and let me know your score!
- When someone incorrectly omits an apostrophe in a text message, you
- Think to yourself, “civilization is crumbling.”
- Judge the person.
- Fail to notice.
- Admire the person’s independent spirit.
- When a professor marks down when a student is late, you:
- Are glad to see rules being enforced.
- Wonder if the professor catches every single late person.
- Wonder if the person had a good excuse for being late.
- Think the professor is unnecessarily strict.
- What is your opinion of honesty?:
- Lying is morally wrong and should be avoided except in absolutely extreme situations (the Nazi at the door).
- Lying generally leads to bad results and should be avoided.
- White lies are okay, but lies told with bad intentions are wrong.
- I determine in each scenario whether the truth or a lie is appropriate.
- Do you agree with a drinking age of 21?
- There has to be some minimum age, and that one seems correct enough.
- Maybe 18 would make more sense, but it seems fair.
- Not really. The Europeans do it better.
- People told not to drink eventually just end up binge drinking in college.
- Which song resonates with you most:
- Pachelbel’s Canon https://www.youtube.com/watch?v=hOA-2hl1Vbc
- Respect, Aretha Franklin https://genius.com/Aretha-franklin-respect-lyrics
- Closer to Fine, Indigo Girls https://www.azlyrics.com/lyrics/indigogirls/closertofine.html
- Logical Song, Supertramp https://www.azlyrics.com/lyrics/supertramp/logicalsong.html
For each of the five questions, give yourself 1 point for every 1, 2 points for every 2, 3 points for every 3, and 4 points for every 4.
5 points to 7 points: You are THE Rules person. Congratulations, you can build a civilization. Now go take your Bluebook to a movie and yell at people who cut in line.
8 points to 12 points: You like rules, mostly, but they should be abandoned –cautiously – when they are obviously not working well. You generally like rules, but maybe not as a rule.
13 points to 16 points: You’ll gladly apply the rules, so long as that works better than not applying the rule. Let’s examine each rule in turn. Okay, maybe a simple cost-benefit analysis is usually the best guide. There is no real rule that’s not a standard, is there?
17 points to 20 points. You are the Standard bearer. Rules are for the lazy and weak of spirit. We should all put in the hard work to create a just world. There are no easy answers.