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Full-Text Articles in Law
Factors, Scott Rempell
Rules Vs. Standards In Private Ordering, Tomer S. Stein
Rules Vs. Standards In Private Ordering, Tomer S. Stein
Buffalo Law Review
The tradeoff between bright-line rules and general standards is one of the bedrocks of law design. This tradeoff determines how legal norms are composed. The tradeoff between rules and standards pervasively affects private ordering as well: it determines how contractual norms are composed. Yet, scholars exploring the rule vs. standard dichotomy have either entirely overlooked the tradeoff taking place in private orderings or equated it with the public tradeoff that dominates lawmaking.
This Article is the first to systematically examine the rule vs. standard tradeoff in private orderings. The Article carries out this task by identifying and analyzing the fundamental …