Rules v. Standards Across Constitutional Rights

I’ll admit my bias: I desire for the law to be clear and elegant. In law school, I preferred rules over standards (this has relaxed somewhat with age). Part of what drew me to the legal academy was the opportunity to produce scholarship that closes logical loopholes in jurisprudence, unifies inconsistent doctrines, and harmonizes precedent. At the margins, I’d often rather the law be more clear than more “correct.”

This bias may stem from an innate personality attribute (some of us are foxes and some are hedgehogs), or a belief that clarity promotes the rule of law. It is also likely that my initial area of interest and scholarship, First Amendment law, influenced my approach. An abundance of fact-bound inquiries and totality of the circumstances tests would eviscerate the spirit of free speech protected by the Amendment. First Amendment law is not without its balancing, but most of us have internalized the idea that judges are not generally permitted to decide which speech of private citizens has value and which speech does not. The First Amendment reflects a deep fear that those in power will dictate community values. Clear rules are necessary to prevent corruption of the doctrine, and the slope is considered very slippery. These clear rules are what led eight Justices on the Supreme Court to decide that the Westboro Baptist Church has the right to spew their simultaneously incoherent and pointedly hateful message, and for the same eight Justices to hold that depictions of animal cruelty are protected speech. These rules are why we can burn the flag as symbolic speech.

In teaching Criminal Procedure, I have repeatedly been struck by the fact that this sort of clarity is sorely lacking from cases concerning restrictions on criminal prosecution. It’s easy to come up with hypos for Crim Pro, because it’s so often unclear how a new fact pattern will be decided by the Court. Do suspected terrorists deserve their Miranda rights? Surely, they do. Miranda was intended as a bright-line test for suspects receiving custodial interrogation. Yet, somehow, both Senator McCain and the Obama administration feel that the decidedly narrow public-safety exception to Miranda may apply to this entire class of people.

I recently wrote a piece for Michigan Law Review’s online journal about why United States v. Jones will restore our faith in the Fourth Amendment. Jones added a property-based approach to the Fourth Amendment jurisprudence that has the potential to be much clearer and less subjective than the current “reasonable expectation of privacy” analysis. Although courts will now have to look to property law to determine whether the government has intruded upon a property right, and judges can interpret property law differently, at least there is some touchstone outside of their own subjective understanding of which privacy rights we deserve.

In light of the comments to Sunday’s blog post on the reliability of drug sniffing dogs, I wonder if the same degree of clarity/precision/rigidity is as necessary or as desirable in other areas of the law as it is in the First Amendment. The changing technology, police tactics, and trends in criminality may render the Fourth Amendment less amenable to the type of clarity and unifying principles that we hedgehogs desire. Do we have less reason to fear the importation of values, factual exigencies, and prejudices in the Fourth Amendment context, and, further, are they critical to the analysis? As technology improves, and we share all of our thoughts and feelings over the Internet anyway, perhaps there is a lesser role for privacy, and judges can balance privacy interests against public safety. On the other hand, there is a danger that we as a society will become more comfortable with greater intrusions into our privacy, persons, and property by the government, and courts should oppose this trend, not reflect it. For now, I believe that the rampant cynicism surrounding Fourth Amendment jurisprudence (“The Justices rule however they want” and “the Court is just trying to make it easier for the police” are common sentiments expressed by my students) is as important a reason as any to clarity and standardize Fourth Amendment law.




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7 Responses

  1. Erik Encarnacion says:

    Hi Erica! Interesting post!

    I don’t have any really firm views about the optimal precision of Fourth Amendment doctrine, so it’s always interesting to get your take.

    But I can’t help but nitpick about the post’s casual denigration of values. You write, for example, “[t]he First Amendment reflects a deep fear that those in power will dictate community values.” Elsewhere you worry about the “importation of values” in Fourth Amendment jurisprudence. All of this talk suggests–perhaps unintentionally–that the imposition of values by the government is inherently problematic.

    But surely that’s not right. Indeed, in some moods I’m tempted to say that government’s job JUST IS to enforce (and hence impose) the community’s values. And I quite like that the values they impose are say, anti-murdering values, and values relating to tolerating speech we don’t like.

    This is a minor quibble that doesn’t take away at all from what you’ve written; I’m just easily distracted by, and hypersensitive to, values talk!

  2. Orin Kerr says:


    This is a great set of issues, and ones I’ve pondered from time to time. I think the general tension between rules and standards is inevitable in an area like criminal procedure given the dizzying array of factual variations. With that said, I have an early draft paper on rules and standards in criminal procedure law in which I argue that the exclusionary rule justifies a general preference for rules: The basic idea is that the remedy for violations should exert a strong effect on the rules/standards choice. The draft is pretty rough, and I’m not sure the paper will ever see the light of day, but I’d be happy to send you a copy of the draft if you’re interested.

  3. Erica Goldberg says:

    Erik Encarnacion,

    That’s not nitpicky; thanks for pushing me to be more precise with my terms. You’re right that government legislation shapes “values.” Laws against murder influence society to more highly value human life. (I highly recommend the show Deadwood if you’re interested in how lawlessness and values intersect; I bought the DVDs and I am loving them.) In addition, the government can speak for itself to spread values, spending tax dollars on an anti-smoking campaign without being required to spend an equivalent amount of money on a pro-smoking campaign. What I should have said was that the First Amendment reflects a fear that the government will impose values at the expense of private citizens being able to express their own views, and thus change the current paradigm. The government should be able to regulate our actions and even promote speech to regulate our actions, and this certainly shapes our views, but they cannot regulate our views directly. In this context, by “values” I mean our views, feelings, beliefs. My concern about judges imposing their own “values” stems from the view that judge’s personal views, feelings, and beliefs often have an undue influence over their interpretation of the law. Discretionary standards provide more room for this sort of importing of values, but perhaps that is more desirable in the Fourth Amendment realm.

    Orin Kerr,

    I would love to see your draft. I certainly hope it sees the light of day. Perhaps part of the confusion in the Fourth Amendment context is because some of the Justices clearly prefer rules (often to make life more predictable for police, which is understandable) and others prefer standards, so we have rules embedded within standards, which may be a necessary compromise. I think the First Amendment often has the opposite- standards embedded within rules.

  4. Janai S, Nelson says:


    I really enjoyed your post. I’m not sure if I’m decidedly a fox or a hedgehog when it comes to the Court deciding standards and defining rules. It is difficult to remove from the calculus who will be enforcing on the one hand or deciding on the other. The uncertainty of the enforcer’s identity would seem to counsel toward hard and fast rules. However, when I consider the identity of some of the decisionmakers on the Court, I’m not sure I find comfort there. Indeed, I’m pretty sure I don’t. This week’s Florence case is a good example of this. I certainly prefer the murky and inconsistent standard that surrounded post-arrest strip searches to the rule the Court has now articulated which gives law enforcement more latitude than the vast majority of states had elected to. When exercised by law enforcement, discretion of this sort often benefits those with status and privilege and disadvantages those on the other end of the spectrum. Regrettably, the identity of the enforcers and decisionmakers often is as, if not more, important than deciding between rules and standards.

  5. steph tai says:

    I totally echo Janai on this–I worry about the identity of the decisionmakers as well. But I guess my worry about their identity comes also from not simply their politics and backgrounds, but also their expertise in various matters. Take, for example, another Constitutional area–standing–and how it comes up again and again in environmental-ish cases. I’m not sure I’d like it if the Court were to, say, draw a bright line rule in given areas. (1) I wonder about their capacity to address areas where concrete or particularlzed injuries in fact need to be established using more scientific or technical analysis, and (2) I wonder especially about areas where information is still in development (and even about courts’ abilities to make that determination).

    On even another level, I worry about the signaling effects of quantification to the general public. If the courts were to announce a rule–say, “64%”–does that falsely signal to the public that these types of errors can be quantified in such a fine-grained way? I mean, even in the context which we all work–the darned US NEWS rankings context–we see applicants thinking there’s a real difference between a school ranked 40 v. 42, when in all probability, the ranking system can’t really provide measures at such detail. This kind of effect is sort of discussed here:

  6. Erica Goldberg says:

    I think the politics of the decisionmaker shouldn’t affect the preference for rules v. standards, because that allows personal biases to affect rule-making, just at one step earlier in the process.

    I agree, Steph Tai, that how much expertise is required should affect the choice, although I’m not that worried about false signaling effects. Isn’t the solution to that to just communicate more effectively- debunk the case for precision in the US News Rankings. There may be no difference between 40 and 42, but there certainly is a difference between number 10 and number 95, so perhaps we just have to understand exactly how precisely US News works, not discard the ranking system.

  7. steph tai says:

    Big preface! Not trying to be super critical here! Just that uncertainty v. quantification happens to be something that I spend a lot of time worrying about in the risk management context.

    Regarding communication, I’m not sure what you’d suggest in this context. Suppose you the Court said that probable cause needs to involve 64% certainty. What kind of effective communication would that entail? (With regards to the ranking system, I actually do think that the ordinal approach should be discarded, but that’s a topic for another thread). Would it be by saying “yes, we’re saying 64% but we don’t really *mean* that 63% and 64% are really all that different”? In which case, why bother using the 64% number in the first place?

    Second, at least in the risk assessment literature, one of the observed problems with uncertainty quantification is that it self-selects for only certain types of uncertainties (or, in this case, probable cause levels). People in the uncertainty literature break down uncertainties into certain types, with the most easy to quantify being measurement uncertainty. Quantification ends up focusing everyone (courts, the public, litigants) on measurement and probabilistic uncertainty rather than the more unquantifiable uncertainties that are characterized as “deep” uncertainties, like problem-framing uncertainty or methodological unreliability. (p.s. there’s a nice article here talking about all of this in the climate change science communication context, including stuff about philosophical assumptions about uncertainty:

    I think this concern is especially worrisome if we’re talking about a one-time process as judicial rule-setting often is. In the administrative context, sure, communication might work with rule-setting, because rules are more easily revisited, and a sort of iterative process can take place whereby a rule is announced, there’s communication and research about that rule, and maybe the rule is revisited in light of experience and new information. But I would imagine that would be much more difficult in the judicial context, say, with hard numbers.