{"title":"禁止重复规则","authors":"Michaela Coenen","doi":"10.2139/SSRN.2388927","DOIUrl":null,"url":null,"abstract":"The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a rule: may lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.”Rules against rulification are a curious breed: they promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the sometimes-unintuitive consequences that follow from the Court’s adoption of anti-rulification rules, while also offering practical insights as to when and how these rules should be deployed. Among other things, the Article points out that anti-rulification rules, while useful in some circumstances, can carry the surprisingly maximalist consequences of freezing the development of the law and constraining the methodological choices of lower court actors. In addition, the Article sets forth some prescriptive suggestions regarding the creation and detection of anti-rulification rules, proposing, for instance, that the Court should proceed cautiously before pronouncing rules against rulification and that lower courts should insist on express prohibitions from the Court before deeming themselves barred from the rulification endeavor.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"26 1","pages":"644-714"},"PeriodicalIF":5.2000,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":"{\"title\":\"Rules Against Rulification\",\"authors\":\"Michaela Coenen\",\"doi\":\"10.2139/SSRN.2388927\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a rule: may lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.”Rules against rulification are a curious breed: they promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the sometimes-unintuitive consequences that follow from the Court’s adoption of anti-rulification rules, while also offering practical insights as to when and how these rules should be deployed. Among other things, the Article points out that anti-rulification rules, while useful in some circumstances, can carry the surprisingly maximalist consequences of freezing the development of the law and constraining the methodological choices of lower court actors. In addition, the Article sets forth some prescriptive suggestions regarding the creation and detection of anti-rulification rules, proposing, for instance, that the Court should proceed cautiously before pronouncing rules against rulification and that lower courts should insist on express prohibitions from the Court before deeming themselves barred from the rulification endeavor.\",\"PeriodicalId\":48293,\"journal\":{\"name\":\"Yale Law Journal\",\"volume\":\"26 1\",\"pages\":\"644-714\"},\"PeriodicalIF\":5.2000,\"publicationDate\":\"2014-12-01\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"1\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Yale Law Journal\",\"FirstCategoryId\":\"90\",\"ListUrlMain\":\"https://doi.org/10.2139/SSRN.2388927\",\"RegionNum\":1,\"RegionCategory\":\"社会学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q1\",\"JCRName\":\"LAW\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Yale Law Journal","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.2388927","RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a rule: may lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.”Rules against rulification are a curious breed: they promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the sometimes-unintuitive consequences that follow from the Court’s adoption of anti-rulification rules, while also offering practical insights as to when and how these rules should be deployed. Among other things, the Article points out that anti-rulification rules, while useful in some circumstances, can carry the surprisingly maximalist consequences of freezing the development of the law and constraining the methodological choices of lower court actors. In addition, the Article sets forth some prescriptive suggestions regarding the creation and detection of anti-rulification rules, proposing, for instance, that the Court should proceed cautiously before pronouncing rules against rulification and that lower courts should insist on express prohibitions from the Court before deeming themselves barred from the rulification endeavor.
期刊介绍:
The Yale Law Journal Online is the online companion to The Yale Law Journal. It replaces The Pocket Part, which was the first such companion to be published by a leading law review. YLJ Online will continue The Pocket Part"s mission of augmenting the scholarship printed in The Yale Law Journal by providing original Essays, legal commentaries, responses to articles printed in the Journal, podcast and iTunes University recordings of various pieces, and other works by both established and emerging academics and practitioners.