Rules against rulification.

• Author: Coenen, Michael
• Position: III The Effects of Anti-Rullification Rules through Conclusion, with footnotes, p. 680-714

3. THE EFFECTS OF ANTI-RULIFICATION RULES

   To recap, standards laid down by the Supreme Court may operate in one of two ways. If such standards are accompanied by rules against rulification (operating as what I have called "mandatory standards"), then lower courts may not develop specific rules regarding the application of these standards in future cases. If substantive standards are not accompanied by rules against rulification (operating as what I have called "permissive standards"), then lower courts may freely choose to rulify or not to rulify such standards as they see fit. The analysis thus far has attempted to establish both the conceptual validity and doctrinal reality of rules against rulification. But it still remains to be asked: what exactly is at stake here? Why, in other words, does it matter whether the lower courts are barred from rulifying a standard, and what consequences, if any, are likely to follow from the Supreme Court's commands to that effect?

   This Part addresses those questions. They are important questions to address because it is only by understanding the consequences of anti-rulification rules that we can develop a framework for evaluating them: we need to know how' rules against rulification affect the doctrine in order to know whether and, if so, when they should be incorporated into it. And, as this Part suggests, rules against rulification do in fact carry several significant consequences for the substantive standards to which they attach. Across a wide range of substantive contexts, anti-rulification rules achieve at least five important doctrinal results, some positive, some negative, and some whose desirability will vary from case to case. Specifically, rules against rulification will tend to (1) mitigate problems of fit; (2) discourage forms of substantive and methodological experimentation; (3) increase the decisional autonomy of trial court actors vis-a-vis inter mediate court supervisors; (4) reduce judicial transparency; and (5) promote apparent, but not actual, uniformity within the law. The ensuing discussion describes these effects, while offering some tentative normative conclusions as to how they might influence the Court's evaluation of anti-rulification rules across a range of different cases.

   Throughout this discussion, my focus is not on the first-order choice between rules and standards writ large. (129) My inquiry, by contrast, begins where that first-order choice has ended. The relevant point of comparison is not between mandatory standards and first-order rules, but rather between mandatory standards on the one hand and permissive standards on the other. Put another way, I omit discussion of the obvious conclusion that standards accomaccompanied by rules against rulification will generate outcomes quite different from what first-order rules would have produced. Instead, the analysis assumes that a substantive standard is already in place and looks only to the question of how the presence or absence of an anti-rulification rule will affect the standard's operation going forward.

   A Fit

   A virtue of standards--and a corresponding vice of rules--relates to the minimization of over- and under-inclusiveness problems. Rules, but not standards, allow judges to tailor their holdings closely to the underlying facts of a case. Consequently, rules are more likely than standards to yield individual outcomes that seem obtuse, unfair, or otherwise contrary to the "spirit" of the doctrinal inquiry being conducted. But the fit-related benefits of a standard are not guaranteed to last forever. Lower courts might eventually develop rulifications of that standard, and these rulifications will in turn generate over- and under-inclusiveness problems of the sort that the original standard had managed to avoid.

   When a rule against rulification enters the picture, the fit-related benefits of a substantive standard become more likely to endure over time. The whole point of the anti-rulification rule is to foreclose lower court reliance on categorizations, presumptions, and other decision-making "short-cuts" as substitutes for holistic, case-by-case application of the standard itself. All else equal, freewheeling application of an open-ended standard will produce fewer outcomes that seem obviously contrary to or inconsistent with a standard's animating purposes, at least as compared to the alternative of strictly adhering to rules. If, for instance, the relevant standard prohibits "unreasonable driving," and lower courts apply the standard without reliance on ancillary rules, then driving will tend to qualify as "unreasonable" where it really does strike those courts as unreasonable. But if lower courts proceed to rulify the "unreasonable driving" standard--by stipulating, for instance, that driving over seventy miles per hour is per se unreasonable--then some acts of driving would count as "unreasonable" even when circumstances strongly favored a finding to the contrary. (Consider, for instance, the example of a physician driving eighty-five miles per hour on the way to a medical emergency.) Standing alone, a standard cannot prevent these latter sorts of outcomes from arising. But standing next to a rule against rulification, a standard most certainly can.

   The Court's opinion in Florida v. Harris helps to illustrate this point. The Court openly worried that the Florida Supreme Court's "checklist" approach to probable cause review would sometimes generate crude and seemingly arbitrary results--leading Florida courts to find (or not find) probable cause when common sense and intuition would have suggested otherwise. (130) Simply reiterating the content of Illinois v. Gates's substantive standard, (131) however, was not enough to foreclose similar results in future cases. Open-ended as that standard purported to be, problems of fit remained a threat as long as lower courts could develop their own rules to govern Gates's application to different categories of cases. Hence the Court took pains in Harris to establish not just that the Florida court's probable cause finding was substantively erroneous, but also that the finding rested on an impermissible attempt to embed within Gates's framework a detailed set of rules. It is this latter component of the holding in Harris, far more than the open-ended nature of the Gates test itself, that offers the strongest safeguard against over- and under-inclusiveness problems in future probable cause cases. (132)

   At its core, then, the relationship between fit-related values and rules against rulification is simple. Standards, as compared to rules, promote closeness of fit; consequently, anti-rulification rules--which help to preserve a standard's open-ended character--amplify the standard's fit-promoting effects. When the Court regards closeness of fit as a paramount doctrinal priority, rules against rulification will serve its purposes well. To put the point somewhat differently, if the first-order choice of a standard over a rule stems primarily from the Court's desire to minimize problems of over- and under-inclusiveness in the application of law to fact, then the Court will have good reason to bolster the standard with an anti-rulification rule.

   This motivation, however, will not always be at work. As the next few sections reveal, standards sometimes reflect more than just a single-minded judicial desire to ensure closeness of fit. Where alternative motivations are in play, assessing the value of a rule against rulification becomes a more complicated endeavor, as fit-promoting benefits must be considered alongside a variety of other doctrinal effects.

   2. Experimentation

      Lower courts, unlike the Supreme Court, are categorically bound by Supreme Court precedents. According to well-established principles of vertical stare decisis, lower courts cannot set aside Supreme Court rulings that they regard as counterproductive or unwise. Even faced with such strict precedential constraints, however, lower courts make their own independent contributions to the Supreme Court's work. They apply existing Supreme Court law to new and unforeseen fact patterns and, in so doing, provide a substantial information base for the Court to consider when contemplating further doctrinal reforms. By resolving the lion's share of cases that arise under the Supreme Court's precedents, lower courts attempt to make sense of these precedents in a variety of ways. When the time later comes for the Court to update these precedents, the lower courts' body of work can valuably inform the Court's decision regarding which way to go.

      Acknowledging the lower courts' role in the development of doctrinal rules, the Supreme Court has often recognized the value of letting a legal issue "percolate" below before stepping in to provide a definitive resolution from above. The rationale most often surfaces in connection with denials of certiorari, with the Justices declining review of a disputed legal issue for the sake of affording lower courts more time to grapple with its intricacies. (133) Analogous logic could prompt the Court to decide, after granting certiorari, that an issue is better resolved by means of a standard rather than a rule. A standard-like formulation of a Supreme Court holding will "decide less" than a rule-like formulation, thereby providing lower courts with a greater degree of freedom to continue experimenting with the substance of the doctrine under review. (134) To take a simple example, the holding that a driver broke the law because he drove "unreasonably" settles far less than the holding that the driver broke the law because (and only because) his speed exceeded sixty-five miles per hour. With the latter holding on the books, there remains little left for lower courts to do aside from asking whether each individual did or did not exceed the sixty-five miles per hour threshold. With the former holding, by contrast, lower courts would still need to...