Rules against rulification.

• Author: Coenen, Michael
• Position: Introduction through II. The Reality of Anti-Rulification Rules, p. 644-680

ARTICLE CONTENTS INTRODUCTION I. THE POSSIBILITY OF ANTI-RULIFICATION RULES A. Rules, Standards, and Specificity B. The Rulification Process C. Rules Against Rulification D. Subtleties, Nuances, and Complicating Factors II. THE REALITY OF ANTI-RULIFICATION RULES A. The Supreme Court's Commands B. The Lower Courts' Responses C. The Alternative Approach III. THE EFFECTS OF ANTI-RULIFICATION RULES A. Fit B. Experimentation C. Delegation D. Uniformity E. Transparency F. Conclusion: Methodological Minimalism? IV. WORKING WITH ANTI-RULIFICATION RULES A. Creating Anti-Rulification Rules 1. Separating Substance from Methodology 2. Practicing What One Preaches B. Detecting Anti-Rulification Rules 1. Thresholds of Clarity 2. Dicta Versus Holding? V. VARIATIONS ON THE THEME A. Pro-Rulification Rules B. Anti-Rulification Standards C. Anti-Publication Rules CONCLUSION INTRODUCTION

The Supreme Court often faces a choice between bright-line rules and open-ended standards. That is, with what degree of specificity should the Court enunciate controlling principles of doctrine? The tradeoffs are familiar. With rules, the Court can buy itself uniformity, predictability, and low decision costs, at the expense of rigidity, inflexibility, and arbitrary-seeming outcomes. With standards, it can buy itself nuance, flexibility, and case-specific deliberation, at the expense of uncertainty, variability, and high decision costs. (1) Most cases that reach the Court's docket present some version of this design dilemma, and virtually every opinion that the Court issues reflects some determination as to where on the rule/standard spectrum its holding ought to lie.

The choice between rules and standards sometimes gives rise to a second choice, which materializes once the Court has opted for a standard over a rule. Having articulated a governing standard, should the Court permit future rule-like elaborations on the substance of the standard, or should it require that lower courts apply the standard in its pure, un-"rulified" form? Put differently, the Court must choose between adopting a permissive standard, whose application may be assisted by the development of ancillary rules, or a mandatory standard, whose content is fortified against future doctrinal development by a rule against rulification.

Florida v. Harris illustrates this choice. (2) The case involved the Florida Supreme Court's application of the Fourth Amendment probable cause test, (3) which, as defined by the Supreme Court in Illinois v. Gates, permits searches based on "a fair probability that contraband or evidence of a crime will be found in a particular place." (4) The Florida court in Harris had held that a police dog's detection of drug odors did not create probable cause to search the defendant's vehicle, reasoning that the dog lacked the requisite credentials to indicate a "fair probability" of contraband under Gates. (5) In so holding, the Florida court identified several criteria for evaluating the drug detection credentials of canine cops: among other things, the government bore the burden of adducing "the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog." (6) Applying this highly specific minimum-showing requirement, the state court went on to hold that the police lacked probable cause to conduct the search. (7)

The Supreme Court unanimously reversed. The lower court had erred, the Court explained, by "creat[ing] a strict evidentiary checklist, whose every item the State must tick off." (8) In this way, the state court had employed the "antithesis of a totality-of-the-circumstances analysis," as it had not allowed evidentiary deficiencies as to a dog's training credentials to "be compensated for ... by a strong showing as to ... other indicia of reliability." (9) The "inflexible checklist," simply put, was not "the way to prove reliability." (10) The state court should have asked the simpler question of whether "all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime." (11)

The Supreme Court's disapproval of the lower court's decision encompassed not just a substantive disagreement with the conclusion that the police lacked probable cause, but also a methodological objection to the manner in which the court had performed its analysis. The state court had applied a rule where a standard was required. Gates demanded a particularized, case-by-case inquiry into each individual canine-based search; it did not permit the promulgation of an across-the-board, outcome-determinative "checklist" approach for evaluating the drug detection credentials of police dogs. Harris may thus be construed as embracing an anti-rulification rule, making clear that the Gates standard was mandatory rather than permissive as applied to sniff-search probable cause review. Lower courts may not, according to this rule, attempt to objectify the standard's operation across broad categories of future sniff-search cases. Rather, they must take care to preserve the standard in its present-day, un-rulified form. (12)

Rules against rulification are a curious breed. In one sense, they further many of the benefits associated with standards writ large. They guard against over-inclusive and under-inclusive doctrinal formulations and promote fairness on an individualized basis. They reduce the risk of legal obsolescence over time. They encourage the case-specific deliberation long associated with the common law method. At the same time, rules against rulification are themselves rules--rules that limit lower court involvement in the implementation of Supreme Court doctrine. When the Supreme Court promulgates a permissive standard, lower courts may (or may not) choose to fill in the relevant gaps with bright-line boundaries, safe harbor presumptions, categorical exceptions, multi-factor tests, and the like. (13) When, in contrast, a rule against rulification makes a standard mandatory rather than permissive, lower courts may do nothing more than apply that standard in a holistic and case-specific fashion, one that leaves no room for further specifying what the standard itself requires.

The primary goal of this Article is to sketch out some criteria for evaluating the use of rules against rulification and, accordingly, the choice between mandatory and permissive standards. Having decided to offer the lower courts guidance by means of a standard rather than a rule, when should the Court take the further step of expressly prohibiting the lower courts from rulifying the standard in future cases? At first glance, this question might seem to answer itself: if the Supreme Court has opted for a standard over a rule, why would it ever wish for the lower courts to translate the standard into rules? In fact, however, good reasons will often favor that result. Invoking considerations related to doctrinal uncertainty, decisional experimentation, and geographic uniformity, among others, the Article will demonstrate that the Court might sometimes sensibly choose to adopt a standard on the one hand, while permitting its rulification on the other.

By introducing the concept of anti-rulification rules and offering a preliminary appraisal of their advantages and disadvantages, this Article aims to contribute to at least three ongoing areas of scholarly inquiry. The first involves the rules-standards problem itself. Beginning at least with the legal realists, (14) courts and commentators have scrutinized many aspects of the choice between rules and standards, focusing on their respective virtues and vices, their effects on individual conduct, their relationship to formalist and functionalist modes of judging, and so on. (15) While not intervening directly in the longstanding rules-standards debate, this Article does shine new light on the issue by suggesting how choices between rules and standards at the Supreme Court level can end up affecting the development of law at the lower court level. Among other things, for instance, the Article suggests that when standards are permissive rather than mandatory, proponents of rules should sometimes be willing to tolerate the adoption of such standards by the Supreme Court itself, on the theory that permissive standards still leave room for lower courts to clear up uncertainties in the doctrine with rules of their own creation. Put another way, a standard adopted by the Supreme Court need not translate into totality of the circumstances review in every lower court case. Moreover, the articulation of a standard by the Supreme Court--if permissive rather than mandatory--may facilitate the Court's own fashioning of rules in a future set of cases.

The second area of relevant literature involves judicial minimalism. A minimalist court, as Cass Sunstein has put it, "settles the case before it, but ... leaves many things undecided," avoiding in the meantime "clear rules and final resolutions" regarding issues that might benefit from further contemplation among courts, other public officials, and private citizens. (16) For this reason, Sunstein and other commentators have drawn parallels between the debate over minimalism versus maximalism and the debate over rules versus standards. Compared to standards, rules more severely constrain the resolution of future cases; consequently, minimalists champion standards over rules in enunciating controlling propositions of law. (17) This Article, however, offers an important caveat regarding this jurisprudential stance. I suggest that standards more comfortably jibe with minimalism when articulated in a way that permits the development of follow-on rules. The Court does not necessarily further...