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Arizona State Law Journal


rules and standards, forms of doctrine, bright line-balancing test, balancing test


This article's primary contribution to the rule/standard problem is to map the rule/standard continuum more precisely. This article will analyze several cases to reveal numerous forms of doctrine that are hybrids of the two archetypes, "rules" and "standards," including the aforementioned escape hatches, exceptions, and factor tests, and will also discuss costs and benefits of using each of these different forms, irrespective of substance. Judges must choose among a large number of valid forms, attempting to create the best "fit" between the chosen form, a judicial means, and higher-level ends, such as efficiency, social stability, consistency, or autonomy.The article will then utilize the lessons gained from its survey of the rule/standard problem to reevaluate the more theoretical controversy over rules and standards. The choice of form of doctrine should be perceived as primarily a question of technique, not a manifestation of grand legal theory. Judges have properly created a diverse menu of forms to choose from, reflecting the complexity and uncertainty of the world they attempt to regulate. In other words, the numerous forms of doctrine demonstrate that the rule/standard dichotomy is empirically misleading and normatively wrong. The article will then query why many capable lawyers, judges, and legal theorists have characterized the formation of rules and standards, or both, as symptoms (often diseased) of particular ideologies. One of the risks of the American legal culture's preference for theory is that theorists often eagerly apply a critique that may be valid or at least illuminating at one level of abstraction, such as moral-political philosophy, to another level of abstraction, in this case, the technical problem of formulating appropriate doctrine for a particular legal problem. Professor Noam Chomsky's left-wing views, for instance, describe odious aspects of American political and economic culture, but his analysis cannot resolve the technical problems that courts face in creating proper doctrine in all substantive legal areas. To implement their agenda effectively, Chomskyite judges should use rules, standards, and hybrids. To make the point more globally, a judge ought to choose the form of doctrine that makes the best compromise between often conflicting ends, which the judge's normative philosophy established and ranked at a higher level.

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