Elements Outline

Elements of the Law

Autumn 2016, Prof. David Strauss

Rules vs. Discretion

Nature of the dilemma: Never a perfect choice, because both approaches have problems

Best way to solve – get into the facts (Qs to ask)

Do you have a well-trained police department, or department with history of discrimination? Do you have really homogenous population?
Would a strict rule create roadmap for evasion? Then maybe rule isn’t good
How homogenous is the community? Threat of discriminatory enforcement?

If yes, then rule might be better | but risk of underground discretion!

NOTE FOR EXAM: You’ll always get a bit of rule or discretion is each system. Identify it!

Rules are good, discretion is bad

Rules give us certainty/predictability/stability

Efficient for those governed

For the rule-maker (easy to administer, lower administrative costs)
For those governed by the rule (planning)

Fair Notice

Easier to plan around (predictability)
Creates a space for bargaining/negotiation (interest groups/self-correct)
Lack of notice is unfair

Rules are rational/objective/neutral

This makes rules dehumanizing, in a good way (equal treatment), discourages arbitrary/discriminatory enforcement

Counter: Sometimes dehumanization can be bad, if the rule involves an illegitimate overinclusive presumption (Stanley v. Illinois) non-wed fathers
Counter: Some rules may create equality of opportunity, but not equality in fact (e.g. “no sleeping under bridges”)

Perceived fairness is good in its own right

Legitimacy in institutions (government and enforcement of laws)

This preserves our autonomy/self-determination (we are subject to rules, not to the will of others)

Rule that is too harsh or mistaken will always self-improve/self-correct through the legislative and judicial processes, if applied equally (Justice Jackson’s opinion in Railway Exp.)

Counter: Even when applied equally, some kinds of rules may have systematic disparate impact (e.g. “no sleeping under bridges”)
Counter: Self-correction process is slow, relies on a lot of assumptions (political accountability; the process works; no collective action problems getting the process started)

Rules are bad, discretion is good

Rules are excessively resistant to change
Rules can provide a roadmap for evasion

Compare with discretion: make people err on the side of caution, don’t give them a roadmap for evasion

Counter: Inhibiting ppls freedoms by not giving fair notice. They don’t know what’s good v. bad behavior (when discretion is unclear)

POLICY: Will a rule/standard provide a roadmap for evasion for some groups of people with specialized knowledge (repeat players, insiders) but not others? So what?

Rules can be under/over-inclusive (and can be both at the same time)

This makes the rule work less well; ***discuss these direct drawbacks before moving on to discuss more complicated repercussions
Discretion is better in this case because it allows us to be flexible

Account for the equities
Fix rules when they are underinclusive/overinclusive

Overinclusive presumptions (Stanley v. Illinois)

Counter: We may accept some overinclusive presumptions as scientifically valid (e.g. presumption that someone whose blood alcohol level over a certain amount is not competent)
Counter: We may accept some overinclusive presumptions b/c they don’t seem too unfair and/or b/c it would be expensive to adjudicate on a case-by-case basis (e.g. presumption that minors are not informed/competent enough to vote/drive)

Underground discretion when rule is broad/highly overinclusive; extra-statutory factors determine enforcement (cf. Papachristou)

An official (Cop/Judge) corrects for a rule’s over-inclusiveness by giving a break to some1 who really shouldn’t be punished but who, under the rigid rule, would be
Enforcer can operate behind a smokescreen of legitimacy (worse than discretion!)

**THE SAME PROBLEMS MAY ARISE FROM DISCRETION**

Leaves room for arbitrariness in enforcement

Favoritism OR discrimination – cuts both ways
Worse when this happens under a rule rather than discretion, b/c under a rule, the decision-maker can hide behind the legitimacy of the rule and it’s hard to review/challenge those decisions; easier to do when we all know we’re dealing with a discretionary standard

POLICY: Maybe this isn’t a big problem if the decision-maker is highly competent? (police/judge)

But note: rules can also be arbitrary/discriminatory

Lack of notice

This is unfair to those governed (legitimate govts give notice)
This is inefficient

For the govt (wasted efforts legislating and enforc