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Rules Against Rulification, Michael Coenen

Journal Articles

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. Far less 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 recent 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 …