Yesterday, my students and I discussed perhaps my favorite jurisprudential debate in the law – whether legal doctrines should generally be structured as rules or as standards. 

Rules are clear, bright-line tests that are transparently applied with little to no discretion, meaning they can be applied fairly to everyone and predicted in advance.  The age of consent, for example, is a rule.  Regardless of someone’s level of maturity (or immaturity), the age of consent clearly and predictably can be determined for each person. 

Standards allow for more individualized, case-by-case determinations that use a more amorphous test, such as whether someone fell below “the ordinary care of a reasonable person” in the negligence standard.  In most cases, juries will apply this standard on a case-by-case basis, less predictably and sometimes less fairly, as there is room for each judge or jury to exercise discretion and thus situations where like cases will not be decided alike.  This sacrifice of fairness does have the benefit, to some, of allowing individualized determinations that impart a sense of justice in each case. 

I believe everyone is either more of a rules person or more of a standards person, although some jurisprudential contexts lend themselves better to rules and some to standards.  I am generally a rules person, although much of Tort law is framed as standards.  There are exceptions.  The question of whether we have a duty to others is often a legal rule for the judge, not the jury, to decide. And when a judge dismisses a case on summary judgment, a legal rule/precedent is often set about what cannot meet the legal standard, such as behavior that does not fall below the standard of ordinary care as a matter of law and thus cannot subject defendants to liability.

Take this quiz to see where your predilections lie:

QUIZ:

• In the state of Goldbergia, the statute of limitations for filing a negligence lawsuit is three years.  Plaintiff, who may or may not have a meritorious case, becomes quite ill right before the three-year deadline and sues one day after the three years has elapsed.  What should judges do?
  1. Adhere to the deadline.  This way, all defendants can know exactly when they can have finality, and no longer be subject to suit.  Plus, the three years treats all plaintiffs fairly, regardless of circumstances, and doesn’t allow some judges to carve out exceptions that may swallow the rule.
  2. Allow plaintiff to sue.  Plaintiff missed the deadline by only one day and had a good reason.  It would be unjust to foreclose plaintiff from filing the lawsuit.

• Good grammar:
  1. Is important for maintaining precision in communication and clarity of thought, even if the rules are sometimes arbitrary.
  2. Is not necessary so long as your audience knows what you are trying to express.

• You play sports because:
  1. There are clear metrics for achievement. Although the rules may sometimes be arbitrary, everyone is treated the same and can thus compete against each other to chart their own progress.  Cheating, even if it’s a stupid rule, violates this system.
  2. It builds character and a sense of teamwork.  It’s great exercise.  You don’t always have to follow the rules if something won’t affect the outcome.

• Uber should be legally responsible for the actions of its drivers:
  1. Either never or always.  Let’s establish a clear rule so everyone understands, can purchase liability insurance correctly, and can decide their behavior accordingly.
  2. It depends.  If the driver is doing something in Uber’s best interest, and Uber represents drivers as agents even though they are independent contractors, then, in some cases, Uber should be legal responsible.  Let’s decide by looking at the specifics of the particular case.

• Describe yourself:
  1. Sometimes you can be a stickler for how things “should” be.  This doesn’t mean you are rigid or not open minded or spontaneous or fun, but you hold everyone to high standards.
  2. You’re a softie.  You’re very empathetic and try not to judge others.  We are all fighting different battles and need to be understanding of each other.

Results:

If you answered mostly 1. – Congrats and mazel tov, you are a rules person!  People will know where they stand with you, even if they don’t like it!

If you answered mostly 2. – Felicitations and wonders, you are a standards person!  You like looking at the specifics of each individualized case and will sometimes go off-route at a climbing gym.