Rules Against Rulification

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.

author. Assistant Professor, Louisiana State University Law Center. For valuable comments, criticisms, and suggestions, I thank Michael Allen, Anna Arkin-Gallagher, Sam Bray, Bill Corbett, Dan Coenen, Seth Davis, Brannon Denning, Dan Epps, Richard Fallon, Jeremy Golubcow-Teglasi, Mike Klarman, Ashley Lott, Dina Mishra, John Rappaport, Richard Re, Christopher Sherman, Susannah Barton Tobin, and Mark Tushnet. Thanks also to C.J. Murray for invaluable research assistance and to Jordan Navarrette and his fellow Yale Law Journal editors for their tremendously helpful work on the manuscript. All errors are mine.

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 permitfuture 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 thestandard’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 limitlower 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 standardsover 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 minimalist values when it foistsa legal standard on all future courts for all time, categorically prohibiting these courts from developing rules to assist in the application of the standard. Rather, the more minimalist court merely adopts a standard for itself, leaving future courts free to decide whether the standard performs best in rulified, semi-rulified, or non-rulified form. From a law-development perspective, that is, the minimalist virtues of standards will tend to dissipate when rules against rulification enter the picture: it is with permissive standards, but not mandatory standards, that the Court can effectively “leave things undecided.”

Finally, in describing and examining the Court’s existing rules against rulification, I hope to contribute to an emerging area of scholarly interest and debate: the role of the Supreme Court in shaping and constraining the methodological choices of the courts it oversees. The academic literature on this question has focused primarily on issues of statutory interpretation, inquiring into the possibility, reality, and desirability of according binding effect to various methods by which courts glean meaning from statutory texts. Scholars in this line of work have asked, for instance, whether the Court should require future interpreters of a statute to employ textualism over purposivism, prohibit lower courts’ reliance on legislative history, or otherwise constrain the methods by which judges discern the meaning of statutory commands.18 While this Article does not specifically engage with these questions, it may offer a new perspective on the problem, by drawing attention to a set of doctrines through which the Court has unabashedly imposed methodological restraints on its subordinates. The Court’s rules against rulification, that is, may help us understand the relationship between methodology and precedent more generally. At the least, they raise the question whether the Court’s current willingness to impose methodological constraints on lower courts’ applicationof precedential standards can be reconciled with its current unwillingness to do the same when it comes to the interpretation of statutory texts.

The ensuing analysis proceeds in five Parts. Part I offers a conceptual overview of anti-rulification rules, explaining what they are and how they operate. Part II catalogues examples of anti-rulification rules in several different areas of Supreme Court doctrine. In doctrinal domains ranging from the Fourth Amendment to the Takings Clause to intellectual property law to the law of remedies, the Court has established limitations on the extent to which lower courts may rulify substantive standards that the Court itself has laid down. With these examples on the table, Part III turns to the consequences of rules against rulification, focusing on the various ways in which they influence the application and development of the Supreme Court’s doctrinal commands. Among other things, the analysis suggests that rules against rulification tend to reduce the extent of over- and under-inclusiveness problems within a given area of law, while also helping to promote the appearance (though not necessarily the reality) of uniformity across the various sub-jurisdictions that the Supreme Court oversees. Rules against rulification also tend to enhance the decisional autonomy of trial courts, while correspondingly reducing the supervisory powers of their intermediate-level counterparts. And rules against rulification tend to restrict the extent to which lower courts may experiment with doctrine and, by extension, the extent to which the Supreme Court can learn from the lower courts’ work. Anti-rulification rules, in short, can accomplish and frustrate a variety of different doctrinal objectives.

Part IV then raises and addresses two follow-up questions regarding anti-rulification rules. First, once the choice has been made to promulgate a rule against rulification, how should the Court go about effectuating the command? Second, how should lower courts determine whether the Supreme Court has imposed an anti-rulification rule? Here, I offer a variety of prescriptive suggestions. I posit, for instance, that the Court should take care to divorce its methodological justifications for a rule against rulification from its substantive criticisms of a particular rulification that a lower court has employed. I also suggest that lower courts should embrace a default presumption against the existence of rules against rulification, demanding from the Supreme Court a clear statement as to when it intends to propound a mandatory standard as opposed to a permissive one. But I also propose that when the Supreme Court has explicitly articulated anti-rulification rules, lower courts should not dismiss them as non-binding dicta.

In Part V, I consider variations on the theme of anti-rulification rules, imagining and evaluating other doctrinal formulations that the Supreme Court might employ in attempting to control the manner in which lower courts apply standards to individual cases. I discuss, for example, the possibility of “pro-rulification rules,” which expressly instruct the lower courts to rulify a standard in whatever ways they deem fit. I also consider the possibility of “anti-rulification standards,” which, in contrast to true rules against rulification, would merely discourage (but not prohibit) the development of rules to assist in the application of Supreme Court standards. Finally, I imagine the possibility of “anti-publication rules,” which would move even further in the direction of anti-rulification rules by prohibiting the development of any legal precedents whatsoever that concern a standard’s application to individual cases.

The reader expecting a firm, generalized, and (dare I say) rule-like conclusion regarding rules against rulification will not find it in the analysis that follows. The reason is that rules against rulification admit of few easy conclusions. Sometimes they should be used, and other times they should not, and the difficult challenge becomes identifying the considerations that weigh for and against their operation. But there is one definitive point that I do hope to establish: neither the Supreme Court nor the lower courts can deal effectively with rules against rulification unless they recognize their existence and appreciate their importance. For this reason, the Article seeks to remove these rules from the shadows and bring them into the light.

I. the possibility of anti-rulification rules

A. Rules, Standards, and Specificity

What separates rules from standards?19 The distinction depends in large part on specificity.20 The paradigmatic “rule” falls toward the high end of the specificity spectrum; it ascribes definitive consequences to the satisfaction of precise and determinate criteria.21 “Must be at least five feet tall to ride,” for instance, leaves little room for interpretation: if you are at least five feet tall, you can go on the ride;22 if you are shorter than five feet, there is no use waiting in line. The paradigmatic “standard,” by contrast, leaves many application-related details unresolved.23 “Must be mature enough to ride,” for instance, offers only a hazy definition of eligible riders. What does the sign mean by “mature”? Who counts as “mature enough”? Many would-be riders cannot know in advance whether they will get to ride. They must await a final decision maker’s judgment to find out whether they may step aboard.

Extreme examples of rules and standards are easy to create, but what about intermediate cases? How, for instance, should we classify the command, “Must be approximately five feet tall (or taller) to ride”? That is less specific than the “five-foot” rule but more specific than the “mature enough” standard. Into what category, then, should it fall? One could ponder this question at length, but doing so would not yield much of a payoff. “Rules” and “standards” are not Platonic essences; rather, they are man-made concepts that facilitate our analysis of complex, real-world phenomena. For that reason, we need not (and probably should not) bother to define a fixed point on the specificity spectrum that divides the realm of rules from the realm of standards.24 The two categories simply facilitate discussion of something that is very much a matter of degree.25

B. The Rulification Process

In a precedential system, the initial pronouncement of a legal norm marks only the beginning of its development. As cases begin to arise under a non-specific standard, courts must decide whether a particular set of facts satisfies the standard’s triggering criteria. By rendering such decisions—which carry precedential force—courts will begin to elaborate on the content of the norm itself. To be sure, the extent of elaboration depends on the initial specificity of the norm. For highly specific rules, such as the “at least five feet tall” requirement, repeated determinations that an individual does or does not meet the five-foot minimum are not likely to tell us significantly more about what the five-foot requirement permits and prohibits. For less specific standards, by contrast, common law adjudication stands ready to convert an open-ended pronouncement into a far more specific patchwork of rules.26

Return to the “mature enough to ride” requirement. Pronounced in the abstract, the requirement offers little guidance as to whether a given individual is eligible to board the ride. To be sure, some applications of the standard can be immediately predicted: under virtually all plausible interpretations of the “mature enough” standard, a newborn baby probably cannot board the ride, whereas a mild-mannered middle-ager will pose no problem. But harder cases will arise: what about an eight-year-old? A ten-year-old? Someone who seems physically mature but not emotionally mature, or vice versa? Adjudicators will confront these sorts of “boundary” cases and, by resolving them, offer important glosses on what the norm commands. Suppose, for instance, that one application of the standard denies eligibility to a twelve-year-old, while another application grants eligibility to an otherwise similar thirteen-year-old. With these applications in place—and exerting binding effect on future appliers of the standard—we may now render more reliable predictions regarding further applications of the standard. We will know, for instance, that being a teenager counts as a factor in favor of ride eligibility, while being twelve or younger counts as a factor against. A future case might also hold that anyone caught cutting in line in the theme park will be deemed too immature to satisfy the “mature enough” standard. With that case decided, we know that line cutters are per seineligible for a ride—even if other facts might cut the other way. As these holdings continue to accrete, the judicially developed contours of the “mature enough” standard will become more and more apparent.27 Eventually, anyone who digs into the relevant case law should be able to translate the initially articulated standard into a rule-like formulation. Moreover, courts will have accomplished this result without ever having purported to amend or revise the standard itself. It is simply through the process of applying the norm to case after case that courts nudge the norm up the specificity spectrum and increase its rule-like character. This process of “rulifying” a standard is common and unobjectionable; indeed, it is a natural and recurring consequence of issuing opinions with precedential effect.28

The same cannot be said, however, when judges attempt the opposite feat—that is, by “standard-ifying” a previously adopted rule. Suppose, for instance, that a “five feet or taller” requirement is in effect. According to this rule, all persons who are atleast five feet tall are categorically eligible for the ride, whereas all persons who fall below the threshold are categorically ineligible for the ride. If a judge attempts to standard-ify this rule—by, say, creating an exception for someone who is “close to five feet in height and able to handle the demands of the ride,” or by clarifying that riders need only be “reasonably tall”—she will now be creating law that conflicts with the original rule’s substantive commands.29 Instead of clearing up a point of uncertainty that a norm leaves open, the standard-ification process introduces substantive outcomes that the norm had purported to close off. The “five feet or taller” rule, for example, logically implied that no four-foot-eleven individuals could board the ride; with the new standard-ified command in place, however, some four-foot-eleven individuals can in fact make it on board. Thus, whereas rulifying standards merely adds paint to a canvas that a norm has left blank, standard-ifying rules removes paint that was already there.

None of this is to say that lower courts do not ever standard-ify the Supreme Court’s rules. Examples of that process, too, are not difficult to find.30 Nor is it to say that the standard-ification of rules is necessarily inconsistent with vertical stare decisis norms; even if rounding out the edges of a bright-line command creates some substantive inconsistencies with the Court’s original instructions, there are still ways to characterize the change as something other than outright defiance of the instructions themselves.31 But it is to suggest that, in light of the dictates of vertical stare decisis, lower courts face a lesser justificatory burden when attempting to move the doctrine in the direction of more specificity rather than less. A court might, for instance, permissibly declare that the “five-foot” rule requires measurements that include the height of a would-be rider’s shoes, it might require that the controlling measurement occur within sixty days of the ride, and so on, all without having to explain away any seeming inconsistencies with the original set of instructions that the high court established. But these holdings render the rule more specific, not less. Any attempt, by contrast, to standard-ify the rule—by introducing, for example, a soft exception to the five-foot-tall requirement—can succeed only when the decision maker further demonstrates that the seemingly categorical five-foot minimum can in fact accommodate some riders who are less than five feet tall.32 Under a strict stare decisis regime, then, highly specific rules are at least somewhat insulated against standard-ification in the courts subordinate to the rule’s promulgator, whereas not-so-specific standards are inherently exposed to rulification in these subordinate courts. As a result, if the creator of a standard wants to prevent rulification, then she must do something more than simply articulate the standard itself.

C. Rules Against Rulification

What, then, might superior courts do to prevent rulification of their standards by subordinate tribunals? The answer is to fortify the standard with a supplemental command concerning the method with which to apply the standard. In the same way that a superior court demands adherence to the substantive standard it has adopted, it might also require applying that standard in a way that does not produce a body of ancillary rules. Continuing with our hypothetical, we might imagine the creator of the “mature enough to ride” standard stipulating that the maturity of a given rider must be evaluated on an individualized, case-by-case basis, according to the “totality of the circumstances,” and without reliance on generalizations, presumptions, per seexemptions, and the like.33 Higher courts could also strike down lower court precedents that have taken the doctrine too far up the specificity spectrum, identifying error in overly mechanical reasoning that does away with much of a standard’s flexibility. Any sort of command along these lines qualifies as a “rule against rulification”; the creator of the standard not only prescribes a substantive standard for future courts to apply, but also takes the further step of instructing future courts not to rulify the standard when applying it to concrete cases.34

At this point, an important question emerges: won’t anti-rulification efforts always prove futile in the end? After all, as originally described, rulification occurs as a natural byproduct of precedent-driven decision making. The more cases the courts decide, the more data we acquire regarding the standard’s scope and substance. The inevitable consequence of this process is an increasingly specific set of elaborations on the standard, and these elaborations should eventually come to light regardless of whether courts articulate their holdings in terms of generalizations, presumptions, and other rule-like norms. If the process really does work in this manner, then the only viable means of prohibiting the rulification of a standard would be to prohibit lower courts from creating any precedents about the standard at all. Absent this extreme solution,35 however, some amount of rulification will always occur. The specificity of the norm will inevitably rise as the number of on-point judicial precedents increases. Given that fact, it seems that, in the long run, no rule against rulification will ever manage to achieve its underlying objective.

One may accept the premise of this objection without accepting the conclusion. The key is to recognize that, even though the rulification of standards might inevitably occur in a precedent-driven system, the paceat which it occurs can still be controlled. Suppose that Suzie Q, a thirteen-year-old veteran of the fairground, wishes to experience a ride that is subject to our open-ended “mature enough” requirement. The case comes before a judge, who decides that Suzie Q is in fact mature enough to ride. What does the decision of In re Suzie Q tell us about the “mature enough” standard? At a minimum, it tells us that children identical to Suzie Q will satisfy the “mature enough” standard going forward. But precisely how, and to what extent, must those children resemble Suzie Q? The answer to this question depends on the reasoning of the Suzie Q decision itself. If the judge issues an opinion declaring that Suzie Q was mature enough to ride because and only because she was a teenager, that opinion will fill a huge swath of previously unoccupied doctrinal space. Going forward, we would know that the “mature enough” requirement incorporates a strongpresumption of ride-worthiness applicable to all children age thirteen and up. If, by contrast, the judge issues an opinion declaring that Suzie Q’s maturity is evident from a holistic combination of her individual attributes—her age, her size, her demeanor, her past experience at theme parks, etc.—then the opinion will provide far less specification as to how future cases should be resolved. We would know that children similar to Suzie Q have a good chance of satisfying the “mature enough” standard, but we could still only hazard guesses as to how similar to Suzie Q the kids must be. These two contrasting decisions in the Suzie Q case—although they yield the same disposition—carry substantially different consequences for the rulification process. One moves the process along quite a bit; the other merely inches it forward.

In this respect, judges canindeedcontrol the extent to which they rulify a standard in any given case, even if they cannot control the inevitable fact that, as they decide more cases, the substance of the standard will become increasingly rule-like. This point, in turn, means that rules against rulification, while perhaps not capable of stopping the process outright, can at least decelerate it. Bound by a rule against rulification, our lower court judge will be less likely to resolve In re Suzie Q according to categorical reasoning (that is, “Suzie Q gets to go on the ride because and only because she is a teenager”) and more inclined to employ a mushier and more holistic analysis (that is, “Suzie Q gets to go on the ride because, all things considered, she seems like a pretty mature kid”). The rule against rulification therefore tends to reduce the extent of future substantive guidance provided by the decision, yielding a slower rate of rulification over time. For this reason, anti-rulification rules can in fact have significant practical effects. At the very least, they ensure that standards remain static over the short run, even if they inevitably evolve into rules over the long run.

D. Subtleties, Nuances, and Complicating Factors

Lurking beneath the seemingly simple terms “rules,” “standards,” “rulification,” and “anti-rulification rules” are layers upon layers of complexity. The discussion thus far has steered clear of complicating details, relying on artificial examples to elucidate the core features of the concepts introduced. Before moving from tidy theory to messy reality, however, we should expose some of these simplifying assumptions; this endeavor reveals some difficulties that arise when one attempts to classify and evaluate anti-rulification rules in the real world.

First, as we have already seen, the distinction between rules and standards is anything but clean. The concepts merely approximate a property that is very much a matter of degree. What is more, even when we replace the binary rule/standard frame with scalar comparisons of specificity, determining the extent to which one norm is more or less specific than another is not always a straightforward exercise.36 But even though boundary cases will prove difficult, their existence does not a useless concept make, and there remain many scenarios in which the labels “rule,” “standard,” “more specific,” and “less specific” can advance the analysis in a useful and understandable way.

Second, and related to the first point, I have sometimes spoken as if the “rulification” process involves the straightforward conversion of standards into rules. But this, too, is an oversimplification. “Rulification,” as I understand it, occurs any time a judicial decision materially increases the specificity of a controlling legal norm. This increase in specificity can happen when paradigmatic standards become paradigmatic rules. But it can also happen, for instance, when courts make specific rules even more specific (for example, “In applying the requirement that would-be riders must be at least five feet tall, we will henceforth alwaysmeasure the rider’s height without reference to the shoes she is wearing.”), or when courts make highly amorphous standards somewhat less so (for example, “In applying the requirement that riders must be ‘mature enough’ to board the ride, we will henceforth measure maturity by reference to physical, rather than emotional, characteristics.”). For simplicity’s sake, it may be helpful to view standards as the input of a rulification process and rules as the output, but nothing of significance turns on this particular point. What matters most for our purposes is that (a) courts put “meat on the bone” of a legal directive when they apply that directive to future fact patterns, and (b) the Supreme Court sometimes seeks to discourage lower courts from doing just that.

Third, as we will soon see, the Supreme Court does not always speak with clarity regarding the existence of a rule against rulification. Sometimes, for instance, the Court may offer a lengthy justification for its own decision to favor a standard over a rule without indicating whether the same reasoning extends to lower court rulification of the standard. Sometimes, the Court may reject a particular rulification of a standard without further indicating whether its rejection of that rulification extends to alternative rulifications as well. In these and other cases, Supreme Court precedents leave anti-rulification rules debatably—and not definitively—present in the doctrine. In Part III of the Article, I will consider this problem in greater detail. For now, it suffices to note that observers will not always agree on whether the Court has injected anti-rulification rules into its case law.

Finally, I have thus far spoken as if doctrine can be reliably trusted to constrain future decision making. But this, too, is an oversimplification. Courts do not always abide by the precedents to which they are bound. Sometimes they forget about a controlling case; sometimes they misread an opinion; sometimes they willfully ignore the law. Doctrine does not constrain as much as it purports to constrain. Whateverinfluences it brings to bear must compete with a host of countervailing forces: human error, political pressure, and results-oriented reasoning, to name a few. Even if controlling Supreme Court precedent dictates that a lower court mustapply a standard on a case-by-case basis, that command itself provides no guarantee that lower courts will always do so.

Even so, as long as rules against rulification sometimes operate as advertised, an investigation into their legaland doctrinalcharacter strikes me as well worth conducting. The project becomes fruitless, in other words, only on the premise that legal doctrine exerts no force whatsoever on judicial decision making. That premise strikes me as implausible.37 At the same time, nothing in the pages that follow should be taken to imply a total faith in the constraining nature of legal doctrine. Rather, the analysis proceeds on the premise that rules against rulification, like many other doctrinal rules, will at least sometimes be taken seriously by the lower courts tasked with applying Supreme Court law.38

II. the reality of anti-rulification rules

Having established the conceptual possibility of rules against rulification, I now turn to the question of their real-world existence. This Part has two aims. The first is to demonstrate that the Supreme Court does in fact issue rules against rulification. The second is to show that the Court’s anti-rulification commands do not amount to meaningless blather. In other words, the Part attempts to show both that the Court has injected anti-rulification rules into a variety of doctrinal areas and that lower courts at least sometimes pay attention to those rules when applying the substantive standards to which they attach.

A. The Supreme Court’s Commands

Florida v. Harris provides a nice introductory example of an anti-rulification rule. As we have already seen, the Court in Harris made clear that, in applying the probable cause test, lower court judges must reject “rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.”39 Similar pronouncements have arisen in other areas of Fourth Amendment law. For instance, in evaluating the voluntariness of a defendant’s consent to a search, the Court has “eschewed bright-line rules” and “disavowed any ‘litmus-paper test[s],’” favoring instead a “traditional contextual approach” that accommodates the “endless variations in the facts and circumstances” that individual cases present.40 It has done the same in defining the conditions under which citizens’ encounters with the police count as a Fourth Amendment “seizure.”41 And in asking whether exigent circumstances justify a warrantless search, the Court has recently called for a “finely tuned approach”42 that evaluates “each case of alleged exigency based ‘on its own facts and circumstances.’”43

Other areas of criminal procedure reveal anti-rulification rules at work. For example, the Court’s suggestive identification jurisprudence—which asks whether police identification procedures violate a defendant’s right to due process—“requires courts to assess, on a case-by-case basis, whether improper police conduct created a ‘substantial likelihood of misidentification.’”44 Similarly, when asking whether “extraordinary circumstances” justify the equitable tolling of postconviction filing deadlines, courts must apply the test “on a case-by-case basis,” so as to avoid creating “‘hardships which, from time to time, arise from a hard and fast adherence’ to more absolute legal rules.”45 In describing the reasonableness standard that defines the Sixth Amendment right to effective assistance of counsel, the Court has emphasized that “specific guidelines are not appropriate” and that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions” that counsel might make.46 Moreover, in articulating the boundaries of so-called “plain error” doctrine (governing forfeiture of claims not raised at trial), the Court has warned of the dangers associated with “a ‘per se approach to plain-error review’”—an approach it has found to be flatly inconsistent with the “case-specific and fact-intensive basis” on which plain error analysis is supposed to proceed.47

The Court has also invoked anti-rulification rules in civil cases. When it first set forth the three-part balancing test of Mathews v. Eldridge,48 for instance, the Court made clear that the open-ended nature of the test reflected “the truism that ‘“[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’”49 Following up on this point some twenty years later, the Court invalidated a lower court’s attempt to embed an “absolute rule” within the Mathews framework, reasoning that the precedential support for such an approach was “far outweighed by the clarity of our precedents which emphasize the flexibility of due process as contrasted with the sweeping and categorical rule” the lower court had adopted.50 Or as the Court has more recently put it, “[b]ecause the requirements of due process are ‘flexible and cal[l] for such procedural protections as the particular situation demands,’ we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures.”51

Consider also the Court’s recent description of the “equitable principles” governing the issuance of permanent injunctions in civil cases. In eBay v. MercExchange, the Court defined these principles in terms of a “four-factor test” and thenwent on to fault both lower court decisions in the case for applying this test in an unduly rulified way.52 The district court, that is, had erred by “appear[ing] to adopt certain expansive principles suggesting that injunctive relief could not issue in a broad swath of cases.”53 The court of appeals had erred, meanwhile, by adopting a “general rule” that was too accepting of injunctive relief.54 Though each court had reached a different result, both had committed the same methodological mistake: “Just as the District Court erred in its categorical denial of injunctive relief, the Court of Appeals erred in its categorical grant of such relief.”55 Both lower courts, in other words, had ignored the fact that the relevant doctrinal analysis depended on “traditional equitable principles,” which “do not permit such broad classifications.”56 Going forward, as Justice Kennedy’s concurring opinion put the point, courts were to apply the “well-established[] four-factor test—without resort to categorical rules.”57

Various substantive standards in intellectual property law have also been yoked to rules against rulification. In articulating the standard for determining whether a claimed invention is too “obvious” to qualify as patentable, the Court once faulted the Federal Circuit for “analyz[ing] the issue in a narrow, rigid manner inconsistent with [the Patent Act] and our precedents.”58 These precedents, the Court emphasized, “set forth an expansive and flexible approach” to obviousness determinations, which should not be “transform[ed] . . . into a rigid rule that limits the obviousness inquiry.”59 The Court has sung a similar tune in defining copyright law’s “fair use” defense, admonishing that the analysis of fair-use claims is “not to be simplified with bright-line rules.”60 Congress, in short, had “eschewed a rigid, bright-line approach to fair use” when it codified the defense,61 meaning that any fair-use claim “has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.”62

Finally, consider the Court’s Takings Clause doctrine. While the Court has characterized some types of government conduct as “per se” takings,63 it has emphasized that outside the context of these “per se” categories, takings analysis must proceed in a manner that accounts for the “particular circumstances of each case.”64 In Arkansas Game & Fish Commission v. United States, for instance,a lower court had held that recurrent, though temporary, floodings of land could never constitute a taking of property.65 But the Court rejected this “categorical bar” as inconsistent with the principle that “no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking.”66 Much to the contrary, the Court held, “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.’”67 The proper approach, in other words, called for “situation-specific factual inquiries.”68

In sum, several different areas of Supreme Court doctrine,69 spanning both constitutional and non-constitutional cases, reveal attempts by the Court to dictate not just the substance of a doctrinal standard, but also the method by which lower courts should apply the standard in future cases. With that in mind, let’s now investigate whether the lower courts pay attention to these commands once they have been put in place.

B. The Lower Courts’ Responses

This Part highlights lower court cases that cite anti-rulification rules as reasons not torulify a standard. In considering a potential rule-like application of a standard, the courts deciding these cases have invoked the authority of an anti-rulification rule as precluding such an approach. These examples cannot definitely prove that anti-rulification rules carry real-world force. Sometimes, for instance, lower courts might invoke the Court’s anti-rulification rules as post-hoc rationalizations for holdings that they were already inclined to issue.70 Nevertheless, the examples provide some evidence that anti-rulification rules do at least place some weight on the methodological scale, rendering judges less inclined to rulify the Supreme Court’s standards than they otherwise would be.

Consider first the lower courts’ applications of the Fourth Amendment probable cause standard. In United States v. Brundidge,71 the Eleventh Circuit declined to invalidate a search based on an affidavit that lacked independent police corroboration. The problem, in short, was that such a holding would effectively “requir[e] independent police corroboration . . . as a per se rule in each and every case.”72 Such a rule was inappropriate, the court reasoned, not only because it lacked direct support in prior cases,73 but also, and more fundamentally, because the Supreme Court has “criticiz[ed] per se rules for the determination of probable cause.”74 Other lower courts have employed analogous reasoning to reject related rulifications of both the probable cause standard and other Supreme Court standards within Fourth Amendment law.75

Similar results appear in cases concerning the right to effective assistance of counsel, where the Court has warned against the use of specific guidelines to assess the reasonableness of an attorney’s conduct.76 In Harrington v. Gillis,77 for example, the Third Circuit reviewed the ineffective-assistance claim of a habeas petitioner, who argued that his defense attorney’s failure to appeal from a criminal conviction violated the Sixth Amendment. The state court had rejected this claim,78 invoking a prior case in which it had held that “before a court will find ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must prove that he requested an appeal and that counsel disregarded this request.”79 But the Third Circuit rejected the state court’s reasoning, holding that it contravened clearly established federal law. The problem, again, had to do with the method of analysis reflected by the state court’s approach. The Supreme Court had “definitively rejected any per se rules for adjudicating claims of ineffective assistance of counsel,”80 and the state court had attempted to apply a per se rule. Put another way, the state court had treated one and only one feature of the counsel’s conduct “as dispositive,” when it should have “consider[ed] all the circumstances” presented by the claim, thus “engag[ing] in the circumstance-specific reasonableness inquiry required by Strickland.”81

Procedural due process doctrine also provides examples of lower courts taking seriously the Supreme Court’s anti-rulification commands. In McClure v. Biesenbach,82 for instance, the Fifth Circuit made short shrift of a claim that due process required pre-deprivation proceedings before a municipality abated a noise nuisance. Such a “per se” claim wouldn’t work, the court explained, because “the mandates of due process are inherently flexible, and the courts must balance public and private interests.”83 More generally, courts have repeatedly incanted Mathews’s anti-rulification rhetoric, emphasizing, for instance, that “administrative proceedings . . . must be carefully assessed to determine what process is due given the specific circumstances involved,”84 and that “[t]he precise procedural protections of due process vary, depending upon the circumstances, because due process is a flexible concept unrestricted by any bright-line rules.”85

Consider, too, the way in which the Court’s eBay86decision has affected subsequent lower court analyses of equitable remedies. In Sanders v. Mountain America Federal Credit Union, for example, the Tenth Circuit invalidated a “pleading rule” that a district court had applied to requests for injunctive relief under the federal Truth in Lending Act (TILA).87 The rule, as the Tenth Circuit described it, “require[d] all consumers who seek to compel TILA rescission [of an unlawful loan] to plead their ability to repay the loan” as a precondition to the district court’s granting of such relief.88 But by issuing such a rule, the district court had ignored the fact that “[t]he Supreme Court has rejected the application of categorical rules in injunction cases.”89 eBay’s anti-rulification rule, in other words, helped to bolster the court’s conclusion that “categorical relief is beyond the reach of the courts’ equitable powers.”90 Rather than issue a rule applicable to all consumers in all TILA cases, the district court should have “weigh[ed] the case-specific equities in favor of both parties and the public interest.”91

Case law involving both the Patent Act’s “obviousness” standard and the Copyright Act’s fair-use defense also provides examples of lower courts’ adherence to the Supreme Court’s anti-rulification rules. The Federal Circuit recently rejected an inventor’s claim of nonobviousnessas incorrectly premised on a “restrictive view” that would “present a rigid test” for obviousness, in violation of the Supreme Court’s command that “[t]he obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation.”92 Similarly, the Second Circuit has refused to adopt a rule under which a defendant’s bad-faith appropriation of copyright material would be “dispositive of a fair use defense,”93 citing the Supreme Court’s “warning against the application of ‘bright-line rules’ in fair use analysis.”94

Finally, in Quebedeaux v. United States, the Court of Federal Claims confronted a takings claim arising from government-induced flooding of private land.95 In Arkansas Game & Fish Commission, recall, the Court had refused to hold that temporary floodings of land fell categorically beyond the scope of the Takings Clause, holding instead that the takings analysis required “reference to the ‘particular circumstances of each case.’”96 Quebedeaux, by contrast, raised the question of how frequent such floodings needed to be in order to implicate the Fifth Amendment’s just-compensation requirement. The government had asked the lower court to adopt a “bright-line rule” according to which “a single flooding event may not give rise to a takings,” but the lower court rejected this approach as inconsistent with the “multi-factored, factually-intensive nature of the takings analysis.”97 Instead, the court held, the inquiry “require[d] an examination of multiple factors, certainly beyond whether actual flooding has occurred once, twice, or even a dozen times.”98

These examples highlight the breadth of anti-rulification rules. In none of these cases did lower courts reject rulifications identical to ones that the Supreme Court had previously rejected. Instead, lower courts rejected rulifications that the Court had never before considered. They did so because they read the applicable Supreme Court precedents to establish not just a substantive prohibition on the use of one particular rulification of a standard but also a methodological prohibition on any and all attempts to apply the standard in rule-like terms. It was, in other words, the act of formulating a standard in rule-like terms, rather than any one particular formulation, that the lower courts deemed off-limits. In that sense, they were taking both substantive and methodological guidance from the Supreme Court’s rules against rulification.

C. The Alternative Approach

By now, the reader may be thinking: “Wait a minute! These examples stand for only the unremarkable proposition that the Supreme Court sometimes adopts standards. That’s hardly worth writing home about, much less in law-review-article form.”99 But the rejoinder to that argument has already been advanced: as Part I made clear, a standard accompanied by an anti-rulification rule (what I have called a “mandatory standard”) is not the same thingas a standard standing alone (what I have called a “permissive standard”). I have already offered conceptual support for that point, but let me briefly offer a few concrete examples of permissive standards at work.

One permissive standard resides within Miranda doctrine. Although the Miranda warningitself reflects a bright-line rule, courts must still determine when such warnings are necessary. Here, the Supreme Court’s guidance has taken on a more standard-like character. Specifically, the Court has explained that Miranda applies once an interaction between law enforcement and an individual takes the form of a “custodial interrogation.”100 What counts as a custodial interrogation? While the Court has offered some guidance on this point, it has largely delegated the development of governing law to the lower courts.101 This move, in turn, has led some courts to rulify important aspects of their doctrine concerning the scope of custodial interrogations. The Third Circuit, for instance, has stipulated that admissibility-related questioning of individuals at border checkpoints qualifies as per senoncustodial for Miranda purposes.102 Relatedly, several circuits have ruled that valid Terry stops do not normally give rise to custodial circumstances.103 Until recently, the Sixth Circuit had applied a “bright-line test” to cases involving in-prison interrogations, according to which Miranda warnings “must be given when an inmate is isolated from the general prison population and interrogated about conduct occurring outside of the prison.”104 Moreover, the Court itself has deemed questioning pursuant to “ordinary traffic stops” to be noncustodial.105 These rulifications of Miranda’s definition of“custody” remain good law today, notwithstanding the fact that Miranda originally defined Miranda’s applicability in the form of a standard rather than a rule.

A second example involves the identification of circumstances triggering application of the Sixth Amendment right to counsel. In a series of cases beginning with Massiah v. United States, the Supreme Court has held that the right to counsel prohibits “government agents” from covertly eliciting testimony from a defendant in the absence of counsel once a criminal prosecution has begun.106 Yet the Court has offered little guidance as to who counts as a government agent for Massiah purposes107—what to do, for instance, about government informants acting on their own initiative?—and the lower courts have hazarded different means of answering the question for themselves. Some circuits have applied a “bright-line rule,” under which an individual becomes a “government agent” only when “instructed by the police to get information about the particular defendant.”108 Other circuits, by contrast, use a standard-based approach, identifying Massiah-worthy government agents by reference to the “facts and circumstances” of each case.109 Therefore, by allowing lower courts to choose between rules and standards to facilitate their application of the “government agent” test, Massiah appears to have left a permissive standard in its wake—one as to which further rulification is neither prohibited nor required.

One further example comes from administrative law. In United States v. Mead Corp.,110 the Supreme Court expounded on its holding in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,111 which set forth the basic framework for reviewing agencies’ interpretations of their enabling statutes.112 Specifically, Mead held that Chevron deference applies only when an agency has exercised validly delegated powers to act with “the force of law.”113 When, in contrast, the agency does not so act, courts must apply the somewhat less deferential (and more open-ended) framework of Skidmore v. Swift & Co.114 This distinction—between agency actions that do and do not “carry the force of law”—drew immediate criticism from Justice Scalia, who, dissenting in Mead, attacked the standard as hopelessly vague.115 In a subsequent analysis of the decision, however, Thomas Merrill argued persuasively that the lack of clarity in Mead’s force of law requirement was hardly a harbinger of doctrinal doom. In his view, “nothing the Court did or said [in Mead]precludes future decisions that brush away the fuzziness in the majority’s exposition, leaving us with a clear and defensible meta-rule” for determining when Chevron applies.116 Put another way, as substantively vague as the force of law requirement might have seemed, the Court had not prescribed along with it a hard-and-fast rule against rulification. So Justice Scalia’s concerns about doctrinal vagueness were in fact overstated, as both the Supreme Court and lower courts remained free to create sharp-edged rulifications of Mead’s open-ended “force of law” requirement.

Merrill emphasized the rulifying potential of the Supreme Court itself, rather than the circuit courts tasked with applying the “meta-standard” of Mead in the mine run of cases.117 But there is no reason why lower courts cannot start “brush[ing] away the fuzziness” for themselves while awaiting further guidance from above. And indeed, lower courts have attempted to do just that. Building on a suggestion offered in Mead itself,118 most courts have held that legislative rules enacted pursuant to notice-and-comment procedures are presumptively entitled to Chevron deference, thus establishing a safe harbor for agencies that want to ensure deferential review of the interpretations they have propounded.119 Furthermore, various lower courts have set forth rules of their own concerning more specific categories of agency action—holding, for instance, that Chevron deference generally applies to positions embraced in Treasury Department regulations,120 FEC advisory opinions,121 and precedential opinions of the Board of Immigration Appeals (BIA),122 and that Skidmore deference generally applies to positions set forth in IRS Revenue Rulings,123 agencies’ amicus briefs,124 and non-precedential opinions of the BIA.125 None of this is to say that lower courts have no right to express confusion and frustration as to precisely what Mead and its progeny have instructed them to do.126 But it is to say that the Court has afforded lower courts a means of mitigating the confusion by permitting them to rulify the standards that Mead and subsequent cases have set forth.127 That option would not have been available to the lower courts if Mead had stipulated that downstream appliers of the force of law test were required to adjudge its applicability on a “case-by-case” basis, by reference only to the “totality of the circumstances” accompanying each individual agency action.128 But Mead said nothing of the sort; it simply adopted an open-ended standard without placing limits on lower courts’ ability to specify the content of that standard over time.

III. 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, whenthey 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-à-vis intermediate 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 accompanied 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 seunreasonable—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 frameworka 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 valuesand 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.

B. 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 grapple with the meaning of the Court’s “reasonableness” requirement and the many potential rulifications that might flow from it. The lower courts would consider difficult cases at the margins of reasonable driving and, in so doing, identify a more specific set of conditions under which reasonableness might or might not be shown. (For example, the lower courts might hold that driving under the influence is always unreasonable, that driving while talking on a cellphone is always unreasonable except when the phone call involves an emergency, and so on.) Eventually, these courts’ work might provide the basis for better-informed, down-the-road specifications of the standard by the Supreme Court itself.

But when a rule against rulification accompanies the standard, lower courts will enjoy fewer opportunities to tinker with the doctrine. Most obviously, lower courts will no longer have occasion to ask whether rulification of the standard is warranted under all, some, or no circumstances. A permissive standard allows (but does not require) lower courts to rulify certain aspects of the doctrine being applied. But a mandatory standard forecloses that possibility altogether. To the extent, then, that the Court remains interested in rulifyingthe standard in a later case, a permissive standard seems better suited to promote further study of the issue. Unrestrained by the methodological dictates of an anti-rulification rule, lower courts might generate opinions that explain why rulification of the standard might be useful, why it might be counterproductive, or why the question presents a close call. What is more, the lower courts opting to rulify the standard would further confront the question of how to translate the standard into a rule and in so doing embrace different rule-like formulations of the standard itself. All of this work at the lower court level would thereby generate useful data for the Supreme Court to consider when revisiting the doctrine in a future case.135

Rules against rulification also disserve the “percolation” process in a subtler way—namely, by discouraging forward-looking deliberation about the system-wide problems implicated by a given doctrinal regime. Harris once again proves instructive. In setting forth the “strict evidentiary checklist” that the Supreme Court rejected, the Florida Supreme Court had sought to shed light on a set of recurring problems presented by canine searches within the state of Florida.136 The state court had expressed concern, for instance, about the absence of a uniform certification standard for drug-sniffing dogs, inadequate record-keeping procedures regarding the success rates of their searches, and—to the extent that such records existed—defendants’ difficulties in obtaining them.137 One likely effect of the Harris decision will be to render ruminations of this sort less common in future sniff-search cases,138 shielding potentially important regulatory dimensions of the problem from meaningful analysis—both in the courts below and, by extension, in the Supreme Court itself.139

The upshot of all this is that anti-rulification rules will not always prove helpful when the Court is operating under conditions of significant uncertainty. Standards can accommodate this uncertainty nicely, by leaving lower courts with ample flexibility to explore a variety of doctrinal specifications that a standard does not explicitly foreclose. But this flexibility exists only as long as the standard operates as a permissive one. A rule against rulification, by making the standard mandatory, will close off much of this deliberative space, curtailing lower-court opportunities to think about and experiment with competing approaches to a difficult doctrinal problem.

C. Delegation

A further effect of anti-rulification rules involves the allocation of authority between trial-level and intermediate-level courts. Standards, unlike rules, carry the consequence of devolving decision making downward. Rather than specify what an operative norm does and does not permit, the enactor of a legal standard leaves such matters for lower-ranking actors to decide—via the repeated resolution of cases arising under the standard’s open-ended terms. As other commentators have noted, the decision to adopt a standard is, in effect, a decision to delegate, vesting lower-ranking actors with the ultimate authority to dictate results in a wide range of cases. Justice Scalia has noted this point, observing that:

[W]hen we decide a case on the basis of what we have come to call the “totality of the circumstances” test, it is not we who will be “closing in on the law” in the foreseeable future, but rather thirteen different courts of appeals—or, if it is a federal issue that can arise in state court litigation as well, thirteen different courts of appeals and fifty state supreme courts.140

Standards thus delegate authority downward. But this is not all there is to the point, as the ultimate destination of the delegated authority will vary depending on the presence of an anti-rulification rule. Permissive standards will achieve the result that Justice Scalia predicts, vesting primary lawmaking authority in intermediate-level courts of appeals. Mandatory standards, by contrast, will push the delegation all the way down to the bottom of the judicial hierarchy, largely bypassing the intermediate courts on the way there.

Why is that so? The answer relates to the constraining effect of rules. Onlypermissive standards empower intermediate courts (such as the thirteen circuit courts or the fifty state supreme courts) to impose rules on the lower courts they oversee. Mandatory standards, by contrast, prohibit the intermediate courts from doing much more than affirming or reversing each trial court decision on the basis of a case’s particular record. Anti-rulification rules, in other words, substantially limit the amount of precedential guidance that intermediate courts can provide to the courts within their purview, thus giving bottom-level courts (that is, federal district courts and state trial courts) freer rein to apply Supreme Court standards according to their own best judgment. To be sure, rules against rulification do not prevent intermediate courts from reversing lower-level decisions that in their view misapply a governing standard. But they do prevent intermediate courts from accompanying these reversals with opinions that sweep far beyond the facts of each case. The precedential reach of the intermediate court rulings must therefore remain narrow. And with intermediate courts constrained in their ability to direct the efforts of subordinate actors, the subordinate actors necessarily acquire increased control over the standard’s implementation.141

That point perhaps helps to explain why anti-rulification rules sometimes operate in tandem with deferential standards of appellate review.142 Deferential review standards, like rules against rulification, prevent intermediate courts from circumscribing trial court discretion in the application of an open-ended legal norm. Deferential review accomplishes this result in a retrospective manner: it limits the extent to which reviewing courts can upset lower court judgmentsthat have already been rendered. Rules against rulification accomplish the result prospectively: they limit the extent to which reviewing courts can constrain trial courts’ application of a standard by imposing rules for future cases. Mandatory standards prevent reviewing courts from achieving in an ex antefashion the same sorts of incursions on trial court autonomy that deferential review standards aim to discourage ex post.

There remains a final difference between mandatory standards and permissive standards in terms of their delegation-related effects. Mandatory standards, as we have seen, delegate decisional authority all the way to the bottom of the legal hierarchy. Permissive standards, by contrast, delegate decisional authority to intermediate courts. But notice that only permissive standards permit the delegee to redelegate. From the Supreme Court’s refusal to adopt an anti-rulification rule, it does not follow that an intermediate court must assume primary control over a standard’s implementation. The intermediate court might instead decide that the standard makes sense as articulated by the Supreme Court and that no further rulification is necessary. Having so decided, the intermediate court would effectively delegate its own decisional authority down to the courts below it. Rather than direct the lower courts in the form of rule-like specifications of a standard, the intermediate court would instead let the lower courts take up the laboring oar for themselves. Thus, while I earlier noted that permissive standards transmit decisional authority to intermediate courts, it is perhaps more accurate to say that permissive standards leave it up to the intermediate courts to decide where in the judicial hierarchy such decisional authority will reside. Mandatory standards, by contrast, deprive intermediate courts of the ability to make that choice for themselves.

D. Uniformity

Anti-rulification rules also influence the uniformityof substantive law. At first glance, the correlation seems to be a positive one. With a rule against rulification on the books, different courts may not develop different, non-uniform rulifications of a single Supreme Court precedent. Instead, they must all apply the precedent in the same, unrulified form that the Court originally prescribed. That appears to be a uniform result. But in fact, the result fails to promote—and may actually undermine—uniformity in another important sense.

This idea becomes clear if one draws a distinction between “norm uniformity,” on the one hand, and “outcome uniformity,” on the other. Norm uniformity manifests itself when different courts apply the same doctrinal norms across similar cases; outcome uniformity manifests itself when applications of those norms in fact produce similar outcomes in similar cases. (Put somewhat differently, norm uniformity is appearance-based, related to the way the doctrine “looks” on the outside, whereas outcome uniformity is reality-based, related to the way the doctrine works on the ground.) Norm uniformity and outcome uniformity often coexist. When the Court articulates doctrine in the form of bright-line rules, lower courts will apply those same rules in factually similar cases (giving rise to norm uniformity), and the highly specific nature of those rules will tend to promote similar judicial outcomes (giving rise to outcome uniformity). But norm uniformity can sometimes exist in the absence of outcome uniformity. When the Court formulates doctrine in terms of open-ended standards, for instance, all lower courts might apply those same standards in factually similar cases (norm uniformity), but the open-endedness of the standards will result in some lower courts failing to “treat like alike” (outcome non-uniformity).143

By their nature, the Supreme Court’s standards will fail to achieve outcome uniformity nationwide: their very open-endedness causes similar borderline cases to come out differently in the courts below. But Supreme Court standards are capable of producing outcome uniformity within (but not necessarily among) the various sub-jurisdictions that the Supreme Court oversees (that is, state court systems and the federal circuits). Those sub-jurisdictions, as we have seen, can themselves choose to rulify a standard, and in so doing, prospectively narrow the range of outcomes that their own future decisions will produce. By promoting such uniformity at the intra-jurisdictionallevel, however, these jurisdictions will undermine norm uniformity at the inter-jurisdictionallevel. Once some sub-jurisdictions start to rulify a standard, they will make the law appear to be different depending on where a claim is brought. If a claim is brought, for instance, in the Second Circuit, it might trigger a per serule; if the same claim is brought in the Northern District of California, it might trigger a weak presumption; if brought in New Hampshire state court, it might trigger a totality of the circumstances analysis. Where once an outside observer saw a single, un-rulified standard governing across all sub-jurisdictions nationwide, she will now perceive a patchwork of varying legal approaches that differ from state to state and circuit to circuit.

To the extent that the Court wants to avoid this outcome, an effective solution is to promulgate a rule against rulification. The anti-rulification rule will ensure “norm uniformity” across sub-jurisdictions by requiring that all sub-jurisdictional applications of the standard invoke the same doctrinal test, shorn of any divergent rule-like elaborations that might otherwise crop up around the country. To be clear, the rule against rulification will have little effect on outcome uniformity within these sub-jurisdictions. Indeed, by prohibiting individual sub-jurisdictions from pursuing outcome uniformity within their own boundaries, the anti-rulification rule might even undermine outcome uniformity, at least at the local level. At the end of the day, though, that may be a price worth paying in exchange for the virtues of norm uniformity. Appearances can be important, even when deceiving.144 Where uniformity is involved, for instance, there may be sound reasons—grounded in values of fairness, stability, or legitimacy—for making the law “look” as constant as possible, even if deviations in application will inevitably occur.145 If, in contrast, below-the-surface reality matters more than surface-level appearance, then rules against rulification will not provide much in the way of uniformity-enhancing assistance. In fact, the “half-loaf” result of promoting outcome uniformity within, but not across, national subunits may be preferable to the “no-loaf” result of failing to promote any outcome uniformity at all.

An altogether different take on these issues might maintain that uniformity values should play a minimal role in influencing the choice between mandatory and permissive standards. One might conclude, for instance, that neither actual nor apparent uniformity represents an especially important value within the law, contending that uniformity serves at most as an indirect proxy for other values such as fairness, legitimacy, and efficiency that we should simply pursue directly.146 A related argument might posit that even though uniformity should sometimes influence doctrinal design, it should not do so once the Court has made up its mind as to the first-order choice between standards and rules. If the Court wishes to promote uniformity, then it should simply articulate the governing test in terms of a rule, thereby securing for itself both outcome uniformity and norm uniformity across and within all sub-jurisdictions. But once that choice comes out in favor of a standard, the argument would continue, the Court should no longer consider uniformity-related values when deciding whether to adopt a rule against rulification. These arguments, which I can only sketch here, certainly merit further examination. For now, however, it suffices to note that even with standards on the books, the Court and its subordinates can continue to manipulate the different types of uniformity (and nonuniformity) that these standards yield in the courts below. That is a consequence worth taking seriously for anyone who regards uniformity as worth pursuing for its own sake.

E. Transparency

Finally, anti-rulification rules can reduce the transparency of lower court decision making. Judges who repeatedly apply an open-ended standard may come to rely on informal rules of thumb to guide their resolution of factually similar cases. (For example, a judge might come to regard all dogs certified by one agency as presumptively qualified to detect drug-related odors, while regarding all dogs certified by another agency as presumptively not qualified to do the same.) But if rulification of a standard is formally prohibited, the judge has no reason to reveal—and indeed, a strong reason not toreveal—the implicit bases for her decisions. Put another way, rather than deter lower courts from relying on rules, mandatory standards might instead induce them to rely on rules clandestinely. Under many circumstances, this will be a bad thing, leaving litigants and reviewing courts at least partially unaware of the actual rationales for a judge’s decision.

This last point, to be clear, should not count as a universally dispositive reason against adopting an anti-rulification rule. Many dubious factors can and probably do influence lower court decision making, even in the face of clear doctrinal instructions to ignore them. But it does not follow from that fact that courts should be given free rein to rest their decisions on illegitimate considerations.147 Thus, where the Court feels strongly that the rule-based implementation of a standard will take the doctrine in an undesirable direction, it should instruct the lower courts not to rulify regardless of whether some lower courts might subversively employ hidden rules of thumb. (After all, not all lower courts will ignore the Supreme Court’s direction, and at least the high court’s adoption of a rule against rulification will help to reduce reliance on either open or clandestine rules of thumb.) On the other hand, if the case against rulification is weaker, or if the lower courts are likely to face particularly powerful temptations to rulify a standard, transparency concerns could tip the scale in favor of permitting rulification going forward. Under these circumstances, the marginal benefits to be derived from an anti-rulification rule may fail to justify the very real costs of creating a disconnect between doctrinal rhetoric and decisional reality.

F. Conclusion: Methodological Minimalism?

If the foregoing discussion has shown anything, it is that rules against rulification exert a variety of different effects (implicating a variety of different values) on lower-court application of the Supreme Court’s standards. I have looked at each of these effects in isolation, so it remains to be asked whether any generalconclusions can be drawn from viewing these effects in combination. What, in light of the observations offered above, should we say about the overall desirability of rules against rulification and the circumstances in which they should be used?

One way of thinking through these issues relates to the notion of judicial minimalism. Minimalists tend to favor forms of substantive decision making that are “catalytic rather than preclusive”—apt to spur more, rather than less, investigation, information-sharing, and dialogue regarding the appropriate substance of the law.148 This being so, legal commentators have often associated minimalist judging with standard-based judging. As Sunstein himself has suggested, “A preference for minimalism is very close, analytically, to a preference for standards over rules.”149 This makes sense as far as the substance of the doctrine is concerned, but how should a minimalist feel about rules that mandate the use of (un-rulified) standards down the line?

On one view, minimalists should favor anti-rulification rules because anti-rulification rules promote the use of standards, and standards are friendly to the minimalist cause. But standards are friendly to the minimalist cause largely because they leave matters open for renewed consideration in subsequent cases, furnishing future decisionmakers with continued, unrestricted space in which to pursue further refinements of the law.150 This space, it turns out, is not so unrestricted when a rule against rulification mandates strict preservation of a standard’s un-rulified character. For instance, when it comes to the question of whether to emphasize values of fit in applying law to fact, a mandatory standard closes off further consideration of the issue, whereas a permissive standard does not. The same is true when it comes to the question of how(if at all)to specify the content of an open-ended norm. So, too, with the question of whether to furnish trial courts with increased decisional autonomy and the questions of whether and how to pursue uniformity within sub-jurisdictional boundaries. With respect to all these questions, and perhaps others as well, mandatory standards end the discussion, whereas permissive standards keep the discussion going. Mandatory standards, from the minimalist perspective, thus impose very real costs. Their open-ended substantive language imbues them with an attractively minimalist veneer, but their absolute prohibitions on rulification give them an intensely preclusive effect.

To the extent that any general observations can be offered about the relative merits and demerits of rules against rulification, I conclude with the following thought: given the substantial tension that exists between the priorities of minimalists and the effects of anti-rulification rules, I suspect that one’s overall attitude toward minimalism will operate as a reasonably reliable indicator of one’s overall attitude toward the project of prohibiting down-the-road rulification of Supreme Court standards. The ardent minimalist should find much to fear in rules against rulification, whereas the milquetoast minimalist (and especially the ardent maximalist) will find nothing of great concern. This is because rules against rulification, being rules themselves, freeze certain substantive and methodological choices that minimalists will often prefer to leave fluid. Standards leave the law unsettled, but only when those standards are themselves subject to unsettlement.

None of this is to say that minimalists will never wish to settle anything. Indeed, where the minimalist enjoys a high degree of confidence that an area of doctrine is most effectively applied in standard-like terms, then she should embrace anti-rulification rules right along with her maximalist colleagues. First-order standards, after all, will not always reflect tentativeness, ambivalence, or passivity regarding the form and substance that the doctrine should assume. First-order standards can also reflect a range of deep and definitive value judgments, to which even a minimalist might sometimes unswervingly subscribe. Within some areas of doctrine, for instance, standards may reflect the Justices’ firm belief that problems of fit are especially concerning, that trial courts should enjoy substantial independence from intermediate court interference, or that norm uniformity across sub-jurisdictions is significantly more desirable than outcome uniformity within them. Where high levels of certainty on these and other matters exist, rules against rulification will often make a good deal of sense. But where such matters are subject to greater uncertainty, then prohibiting rulification of the standard conflicts with a central animating purpose of the standard itself—namely, that of postponing resolution of a difficult legal issue.

IV. working with anti-rulification rules

The previous Part identified several consequences that follow from the adoption of a rule against rulification. This Part turns to a second set of issues, which involve not the question of whetherto adopt anti-rulification rules, but rather howto deal with anti-rulification rules once the decision to adopt them has been made. Part IV.A offers some preliminary thoughts on how the Supreme Court should go about articulating rules against rulification within its own decisions. Part IV.B then turns to the lower courts’ task of detectingsuch rules, asking in particular how lower courts should respond to mixed signals from the Court about the presence of anti-rulification rules, and whether the courts may permissibly regard even clearly stated anti-rulification rules as non-binding dicta.

A. Creating Anti-Rulification Rules

1. Separating Substance from Methodology

The Court often announces an anti-rulification rule in the course of reviewing a lower court’s effort to rulify a standard. In Florida v.Harris, for instance, the Court reviewed a Florida Supreme Court decision that had set forth a “strict evidentiary checklist” for establishing the requisite level of reliability for drug-detection dogs.151 But simply invalidating one particular rulification of a standard will not suffice to create a generalizedrule against rulification. Absent further explanation, such a holding would merely establish that the lower court erred by rulifying the standard in the way it did. Furthermore, such a holding by its nature would not stand for the broader proposition that all other attempts at rulifying the standard are similarly invalid. Standards can be rulified in many ways. Deeming one such rulification inappropriate is not the same as prohibiting rulification across the board.

In setting forth a rule against rulification, the Court must take care to disaggregate its substantiveevaluation of a particularrulification from its methodological evaluation of whether a standard may ever be rulified. The Court does not always engage in this kind of disaggregation, as Harris itself reveals. Some portions of the Court’s opinion criticized the Florida Supreme Court for failing to evaluate the probable cause question on a flexible, case-by-case basis.152 Other portions of the opinion, however, criticized the substance of the particular evidentiary checklist that the Florida court had devised.153 Logically, these lines of argument point to different conclusions. If the problem with the Florida court’s reasoning lay in its rulifying methodology, then the adequacy of the particular checklist at issue should have been irrelevant to the Court’s opinion. If, by contrast, the problem with the Florida court’s opinion stemmed from the substance of the checklist itself, then the Court should have reversed, while making clear that other lower courts remained free to experiment with other sorts of evidentiary checklists (or alternative rulifications of the Gates standard) in future cases. Under no circumstances, however, should the Court have inferred from the substantive inadequacy of the Florida court’s checklist that all future assessments of a dog sniff’s reliability should eschew reliance on determinate rules.154

There is another point, too. It may well be that the most effective vehicles for establishing anti-rulification rules are cases—unlike Harris—in which the particular rulifications at issue do not strike the Court as egregiously off-base. If the Court really wishes to convince us that a given standard should never be rulified, it should focus on the best possible attempts at rulification, rather than highlighting defects in the attempts that it regards as obviously misguided. Consider, for instance, the Court’s discussion of the Patent Act’s “nonobviousness” requirement in KSR International Co. v. Teleflex Inc.155There, the Federal Circuit had developed a “teaching, suggestions, and motivations” (“TSM”) test for evaluating the obviousness of combination-based inventions.156 In stark contrast to Harris, in which the Court went out of its way to criticize several substantive assumptions underlying the lower court’s attempted rulification of the Gates standard, the KSR opinion actually endorsed the intuitions underlying the lower court’s TSM test. The test, the Court emphasized, had “captured a helpful insight,”157 as it reflected the common-sense principle that “it can be important to identify a reason that would have prompted a person of ordinary skill in the relevant field to combine the elements in the way the claimed new invention does.”158 But even helpful insights, the Court went on to explain, could not justify the adoption of “rigid and mandatory formulas,” which threatened to reduce the obviousness analysis to “a formalistic conception of the words teaching, suggestion, and motivation.”159 Having endorsed the substantive thrust of the test, the Court could more persuasively demonstrate why the “[r]igid preventative rules” that emerged from the test were not good—why, that is, such rules threatened to “deny factfinders recourse to common sense” in evaluating obviousness claims.160 By steering its focus away from the substantive underpinnings of the TSM test and focusing more on the rigidity of the test itself, the Court in KSR International could offer a somewhat more direct and persuasive justification for its methodological prohibition on rulifying the obviousness standard.161

2. Practicing What One Preaches

A second guiding principle for the creation of anti-rulification rules may seem self-evident. Once the Court has prohibited rulification of a standard, it should abide by its own proscription. In this respect, too, the Court’s opinion in Harris fell flat. Having upbraided the Florida Supreme Court for formulating an “evidentiary checklist” of its own, the Court went on to describe the applicable Fourth Amendment principles in suspiciously checklist-like terms. Consider some of the guidance the Court offered regarding the proper way to conduct a dog-sniffing probable cause inquiry (which, for dramatic effect, I present in quasi-checklist format):

·       “[T]he decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import.”162

·       “The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.”163

·       “[E]vidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.”164

·       “The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.”165

·       “A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witness.”166

·       “If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.”167

In fairness to the Court, none of these prescriptions absolutelyrequires that future assessors of dog reliability accord dispositive weight to one or another type of evidence. But these and other statements from Harris set forth a surprisingly specific framework for evaluating reliability in future cases, thereby complicating lower courts’ ability to apply the probable cause standard in the “fluid” and “flexible” manner that Harris purported to demand.168 Having called for the pure application of an unrulified standard to the facts of each case, the Court muddied the waters of its own methodological directive by identifying several general, seemingly non-holistic principles that all such applications must honor.169

Imagine, for instance, that a post-Harris lower court must render a reliability determination vis-à-vis a dog that has been certified by a newly established and highly reputed training agency. The court might wish to establish, as a general rule, that certification by the agency is per sesufficient to establish a dog’s reliability. Can it so hold? On the one hand, doing so seems consistent with (if not expressly required by) the Harris Court’s suggestion that “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.”170 On the other hand, such a holding would seem to establish the very sort of “bright-line rule” that Harris explicitly eschewed. In short, the lower court faces a catch-22: It may accord the agency’s certification non-dispositive weight and thereby invite criticism on the ground that it undervalued a type of evidence that Harris deemed to be critically important. Or it may treat the agency’s certification as dispositive and thereby invite criticism on the ground that it was “prescrib[ing] . . . an inflexible set of evidentiary requirements.”171 Acting one way would ignore Harris’s substantive guidance regarding credible evidence of sniff-search reliability; acting the other way would violate Harris’s rule against rulification.

There are, to be sure, valid ways of reconciling this tension. One might suggest, for instance, that the point of Harris was not to condemn the use of presumptions and generalizations as a categorical matter, but rather to set an upper bound on the extent to which lower courts may embrace presumptions and generalizations when deciding sniff-search cases. In this sense, we might understand Harris as itself accomplishing a partial rulification of the probable cause inquiry, while simultaneously instructing lower courts not to move that inquiry any further toward the rule end of the spectrum. There is nothing illogical in such a holding; the Court can cogently instruct its subordinates to establish this much ex anteguidance but no more. To the extent that this is the true holding of Harris, however, it is a holding at odds with the anti-rulification language that permeates the opinion. The true import of the decision would have been easier to discern if the Court had either toned down its rhetoric regarding the “fluid” and “common sense” nature of probable cause review or refrained from giving such detailed guidance regarding future applications of the probable cause standard.

B. Detecting Anti-Rulification Rules

1. Thresholds of Clarity

What about the role of lower courts in determining whether they are bound by anti-rulification rules? As we saw in Part II, the Supreme Court does not always speak with clarity regarding the methodological obligations it wishes to impose on the courts below. One difficulty, as we have seen, is the occasional opinion that blends together substantive and methodological critiques; when the Supreme Court attacks a lower court’s rulification of a standard, does it intend to wipe out all such rulifications of that standard or merely the particular rulification that the lower court used? Further difficulties arise when, as in Harris, the Court condemns rulification with one hand while arguably engaging in rulification with the other. And the Court can also be unclear as to whether it is merely defending its own choice to adopt a standard or taking the further step of prohibiting rulification of the standard in future cases. In these and other ways, the Supreme Court can generate uncertainty regarding the existence of an anti-rulification rule. In the face of such uncertainty, the question arises: what should lower courts do?

Consider, for instance, the law of personal jurisdiction. When the Court first set forth its “minimum contacts” standard for personal jurisdiction analysis, it characterized the inquiry as one that could not “be simply mechanical or quantitative” but rather must “depend . . . upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.”172 This language—along with other statements from the Court’s personal jurisdiction case law173—has led some lower courts to resist adopting rules to facilitate their own applicationof International Shoe and its progeny. These courts, in other words, have felt bound not only by the substance of the Court’s minimum contacts precedents, but also by what they see as a clearly stated methodological preference for standards over rules.174 But if you go back and peruse the relevant case law, you will not find the Court ever issuing a direct edict of the sort we encountered in Part II—an edict, in other words, that requires lower courts to applythe minimum contacts standard in a way that proceeds case-by-case and takes into account the totality of the circumstances. Rather, International Shoe’s warnings about mechanistic and quantitative decision making addressed the issue of what sort of substantive inquiry the Court itselfshould adopt for purposes of establishing guiding principles of minimum contacts analysis. But what works best for the Court in denoting first-order doctrinal principles of personal jurisdiction doctrine may not work best for subordinate courts tasked with translating those principles into on-the-ground results. Put another way, one reason why the Court might wish to decline adopting a “mechanical or quantitative” test is precisely because such a test reduces lower courts’ freedom to shape the personal jurisdiction inquiry in whatever manner they see fit. So International Shoe and its progeny could be read as simply offering a justification for the Court’s choice of a standard over a rule, rather than an explicit instruction that the standard, once adopted, may not be rulified in future cases.

How should lower courts resolve uncertainties of this sort? In my view, they should apply a strong presumption against anti-rulification rules, adhering to such rules only when the Court has established them with crystal clarity. That preference derives in part, I admit, from my own pro-minimalist sympathies, which render me somewhat leery of the rigid methodological constraints that rules against rulification tend to impose on lower court judges. But apart from that point, there exists a further reason for presuming the nonexistence of anti-rulification rules in the face of doctrinal uncertainty, which relates to the information-forcing benefits that such a presumption will likely produce.175 Simply put, the Supreme Court is more likely to offer clearer and more consistent methodological guidance when lower courts treat rules against rulification as absent-until-proven-present (rather than present-until-proven-absent).

To see why, suppose that all the lower courts treated an area of case law—for instance, the Court’s personal jurisdiction case law—as establishing a rule against rulification. Going forward, the lower courts would apply the minimum contacts standard in a narrow, fact-specific manner, issuing opinions that did not venture far beyond the unique circumstances of each case. That, in turn, would render the lower courts less likely to produce opinions that attracted the Supreme Court’s attention.176 They would sometimes err in applying the standard too leniently or too strictly, but the consequences of their errors would be relatively minor, owing to the highly fact-specific nature of the opinions accompanying the courts’ erroneous holdings. If, by contrast, the lower courts painted broadly—that is, they issued general and widely applicable directives regarding the application of the minimum contacts test—their decisions would be more likely to arouse the interest of the Court itself and generate clarifying guidance as to whether a rule against rulification does in fact exist.

Put another way, no matter how one feels about rules against rulification as a normative matter, one should favor a default rule that permits rulification of a standard unless and until the practice has been expressly prohibited by the Court. Rulifying a standard in the face of Supreme Court uncertainty is more likely to flag the unresolved issue for the Court, at least as compared to the alternative approach of assuming that rulification is banned. That is not to say that lower courts should go about rulifying every standard they see just for the sake of getting the Supreme Court’s attention. The direct merits and demerits of a potential rulification should obviously weigh most heavily in the lower court’s decision. But where a lower court would otherwise be inclined to rulify a standard, it should not hold back simply because the Supreme Court has issued mixed signals regarding the permissibility of such a move. Refraining from rulifying increases the likelihood that the Supreme Court’s guidance on the question will remain in a muddle, whereas rulifying the standard increases the likelihood that the muddle will be tidied up.

2. Dicta Versus Holding?

Even if Supreme Court precedent establishes an anti-rulification rule with absolute clarity, lower courts might remain tempted to dismiss such a rule as “dicta” rather than “holding.” The dicta/holding distinction defies easy definition,177 but in simplified form, it rests on the idea that pronouncements of law underpinning the actual result of a case are different from pronouncements of law that merely accompany the result. Only the former sorts of propositions, longstanding convention holds, constitute binding authority with the force of horizontal and vertical stare decisis. Extracurricular ponderings about the law—not necessary to the outcome of a case—may be treated as persuasive authority, but nothing more.

Might anti-rulification rules qualify as non-binding dicta? Certainly, we can imagine cases in which the answer is “yes.” If, say, the Court were to opine on the standard-based nature of the eBay four-factor test in a case having nothing to do with a request for injunctive relief, then its discussion of eBay would count as non-binding dicta under even the narrowest definition of the term. But more difficult questions emerge in cases of the sort we examined in Part II; in these cases, the Court reverses the lower court on the ground that it erroneously relied on a rule to facilitate its application of a standard. Arguably, anti-rulification rules might still qualify as dicta in these circumstances, on the theory that only the Court’s objection to the particular rulification at issue in the case is necessary to the outcome of that case. On this understanding, for instance, the Court’s analysis in Harris yielded a holding only insofar as it rejected the particular “evidentiary checklist” that the Florida Supreme Court employed. The Court’s broader insistence that no rulifications should ever attend sniff-search reliability evaluations was not needed to reach that result: whatever the Court’s feelings about alternative lower court rulifications in other cases, the invalidity of the Florida court’s checklist was itself sufficient to doom the decision below. More generally, the argument goes, globally applicable anti-rulification rules will always count as dicta as long as they prove broader than necessary to justify the Court’s invalidation of one and only one attempt to rulify a standard.

This line of reasoning proves too much. It suggests that all Supreme Court rules(whether or not about rulification) count as dicta rather than holding, since all rules purport to decide more than the particular case that accompanies their announcement. Analogous reasoning, for instance, would hold that the prophylactic rule adopted in Miranda was non-binding dicta, on the theory that a detailed description of how police officers should warn suspects in future cases was not necessary to the Court’s holding that the particular warning before it violated the law. But lower courts routinely treat the Miranda requirements as binding Supreme Court precedent,178 and the Supreme Court has itself suggested that the requirements are intended to apply as such.179 This is true of many rules that the Court has adopted; lower courts adhere to the rule, even though the rule decides more than the particular case from which it emerged.

An alternative attempt to classify anti-rulification rules as dicta might emphasize their methodological character. Stare decisis norms, this argument goes, typically apply to first-orderdictates of law and not to second-order rules about crafting the dictates themselves. Along these lines, as several legislation scholars have noted, lower courts typically do not treat the Supreme Court’s preferred methods of statutory interpretation as carrying stare decisiseffect. For instance, even if the Supreme Court has eschewed reliance on legislative history when interpreting a section of the U.S. Code, lower courts may still consult legislative history in interpreting that same section in a future case.180 If that is true regarding methodsof statutory interpretation, should it not also be true regarding methodsof law application?

This argument, however, conflates two different questions: (1) whether the Court does accord stare decisis effect to its methodological rules and (2) whether the Court may in fact do so. The curiosity regarding methodologies of statutory interpretation arises from the Court’s general refusal to enter the precedential fray, not from any sort of widespread understanding that the Court would be powerless to create binding rules of interpretive methodology if it so desired. In fact, as Abbe Gluck has pointed out, the Court has assigned binding precedential status to a wide range of methodological instructions on matters other than statutory interpretation, including “Title VII’s burden-shifting regime, the rules of federal contract interpretation, federal choice-of-law rules, interpretive regimes for admiralty, and so on.”181 Moreover, lower courts do not bat an eye at the idea that they must treat such rules as binding precedent. Rules against rulification, which the Court characterizes as binding on the courts below, are no different. If common practice is a guide, then—setting asidethe unusual case of statutory interpretation—the methodological character of anti-rulification rules is not likely to deprive them of binding effect.182

V. variations on the theme

Rules against rulification represent an important means by which the Supreme Court constrains the methodof applying and implementing its standards in subsequent cases. Might there be other means of imposing such methodological constraints? I now consider three such alternative devices—devices that, to the best of my knowledge, the Court has never explicitly employed, but that, like rules against rulification, might restrict (or direct) methodological choices in a variety of related ways. First, I consider the possibility of pro-rulification rules, which would expressly instructthe lower courts to rulify standards that the Supreme Court itself has settled on. Second, I consider the possibility of “anti-rulification standards,” which would discouragebut not prohibit lower court rulification of standards. Finally, I consider the possibility of “anti-publication rules,” which would prohibit lower courts from issuing published opinions (and hence creating binding precedents) in connection with a particular standard the Court has created.

A. Pro-Rulification Rules

In Part III, we saw that there exist several reasons why the Court might wish notto create a rule against rulification. One such reason relates to the value of lower court experimentation. In particular, when the Court envisions that it might one day offer specific guidance regarding the application of a legal norm, but is not yet sure as to what that guidance will be, the best course of action might be to issue a permissive standard for now and to see what the lower courts come up with. Under these circumstances, an anti-rulification rule would prove counterproductive, on the theory that prohibiting lower court rulification would defeat the purpose of adopting the standard itself.

If the Court really wished to spur lower court experimentation, perhaps it should do more than simply not prohibit lower courts from rulifying. Maybe, that is, the court should affirmatively require lower courts to rulify.

For a rough analogue to this idea, consider the Court’s discussion of Article III standing doctrine in Allen v. Wright.183 There, in discussing various components of the standing inquiry, the Court conceded that Article III standing “cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.”184 At the same time, the Court went on to note that “[t]he absence of precise definitions . . . hardly leaves courts at sea in applying the law of standing.”185 Why? Because Article III standing “is built on a single basic idea—the idea of separation of powers,” and “both federal and state courts have long experience in applying and elaborating in numerous contexts the pervasive and fundamental notion of separation of powers.”186 Put somewhat differently, subsequent clarification of the doctrine might occur in the lower courts themselves, since “[d]etermining standing in a particular case may be facilitated by clarifying principles or even clear rules developed in prior cases.”187 This was, to be sure, not always going to be possible; many issues of Article III standing would always require “careful judicial examination of a complaint’s allegations.”188 But given the overarching separation-of-powers principles at play, and given the lower courts’ ability to flesh out the contours of these principles through the common law method, the Court saw an opportunity for “the gradual clarification of the law through judicial application.”189

To be sure, this language hardly obligated lower courts to start developing clarifying rules regarding the scope of Article III’s limits on standing. Perhaps the Court intended merely to assuage fears that a vaguely formulated set of Article III standing requirements presaged eternal doctrinal confusion. But one at least sees within the passage the seeds of what might be a new, and sometimes useful, technique for developing the contours of the law in an especially inclusive and dialogic way: create a standard at the Supreme Court level and then expressly invite (if not obligate) the lower courts to develop rules about the standard in subsequent cases. Insofar as greater clarity and specificity of the doctrine are the overarching desiderata, and insofar as the Court seeks lower court input on how the doctrine should be clarified and specified, then a “pro-rulification rule” might best serve the interests of the Court itself.

B. Anti-Rulification Standards

Anti-rulification rules, I have argued, can suffer on account of their rule-like nature. They categorically render rulification off-limits, leaving minimal room for future discretion in determining whether the process should take place. When the absolutism of an anti-rulification rule threatens to do harm, one possible corrective is to reduce its absoluteness. Rather than prohibit rulification outright, the Court might simply issue a non-categorical caution against rulifying, while still permitting the practice to proceed when exceptional circumstances so warrant.

I would term such a directive a “standard against rulification.” One can imagine various forms that such a standard could assume. The Court might hold, for instance, that lower courts may not rulify unless doing so is “absolutely necessary to constrain trial court decisionmaking.” Or it might provide that lower courts may rulify, but only in a way that “maintains an adequate degree of fit between the purpose of the norm and the outcomes that it generates.” The idea, in short, would be to place a thumb on the scale against rulification without banning the practice altogether.190

Again, I am unaware of any holdings that follow directly along these lines.191 In practice, though, a standard against rulification might not operate much differently from Supreme Court doctrines that leave the existence of an anti-rulification rule unclear.192 These sorts of doctrines, as we saw in the previous Part, do indeed exist. In these areas of doctrine, recall, uncertainty arises not from a deliberate choice on the part of the Court to vest some measure of rulifying discretion in the courts below. Rather, the issue is whether, in justifying its own decision to adopt a standard over a rule, the Court has (intentionally or not) directed its subordinates to follow suit when applying that standard to future cases. This difference aside, however, the upshot of both sorts of decisions is the same. When the Court sends mixed signals about the existence of an anti-rulification rule, lower courts may feel some, but not total, pressure to avoid rulifying the standard, much as they would in the face of an express directive from the Court instructing them, say, to avoid rulifying unless absolutely necessary.

As compared to a debatably existent rule against rulification, however, a standard against rulification is more likely to yield manageable and satisfactory forms of lower court discretion. For one thing, if a lower court determines that uncertain precedents do in fact create an anti-rulification rule, then within that court’s jurisdiction, rulifying discretion totally and completely disappears. With an anti-rulification standard, by contrast, all intermediate courts may proceed with the knowledge that rulification might be appropriate under some circumstances. In addition, standards against rulification better enable the Court to identify the conditions under which rulification of a standard may continue to take place. If the only source of lower court discretion is doctrinal confusion regarding the presence of an anti-rulification rule, then the lower courts may leverage that confusion in a manner that steers their case law in unanticipated and undesirable directions. If, by contrast, the source of lower court discretion is a direct vesting of such discretion by the Court itself, then the Court can more effectively channel that discretion in the direction it desires.

C. Anti-Publication Rules

We have explored alternatives to anti-rulification rules that are friendlier to the development of rule-based doctrines in the lower courts. Here, by contrast, I consider a final possibility that would likely deter rulification even more drastically than would anti-rulification rules themselves. My aim, to be clear, is not to advocate for or against this particular variation on the theme, which I here refer to as “rules against publication.” Rather, it is merely to identify such rules as a theoretical possibility and to use them as a means of further highlighting the tradeoffs implicated by the anti-rulification endeavor.

As we have previously seen,193 even with anti-rulification rules in place, the accretion of precedents over time tends to increase the specificity of legal doctrine. Anti-rulification rules slow down this process, but at the end of the day, even the most categorical rules against rulification cannot stop rulification from occurring at all. Today’s decisions become tomorrow’s precedents. With enough precedents on the books, application of even mandatory standards may eventually become more constrained and less holistic than the Court might wish it to be.

Would the Court be able to stave off even these very gradual processes of rulification that anti-rulification rules seem powerless to stop? In theory, yes. If gradual rulification inevitably results from precedential decision making, the Court could nip it in the bud by prohibiting the issuance of precedential opinions altogether. Many federal courts of appeals regularly issue unpublished opinions, which carry minimal, if any, precedential weight. This practice is controversial: scholars have criticized nonprecedential opinions (also called “summary orders”) as, among other things, unconstitutional,194 unwise,195 and unfair to the parties they bind.196 But whatever their flaws, unpublished opinions do provide a means of resolving cases in the present without constraining the resolution of cases in the future.197 Therefore, if the Court were really serious about guaranteeing that each case arising under a standard enjoyed holistic and commonsensical review, then prohibiting the publication of opinions about the standard might prove to be an especially potent means of achieving that result.

Many readers, I suspect, will blanch at this proposal. Wholly apart from its arguable unlawfulness,198 the issuance of anti-publication rules might seem an especially meddlesome and heavy-handed move for the Court to make. Why should the lower courts be told how to handle their own business? Can’t they figure out for themselves whether or not to issue a precedential opinion in a given case? Or, put somewhat differently, wouldn’t anti-publication rules unnecessarily restrict the ability of lower courts to develop and elaborate on Supreme Court precedents in useful and beneficial ways?

In this Article, I have tried to suggest that rules against rulification raise an analogous set of concerns. Anti-publication rules, after all, amount to nothing more than anti-rulification rules in super-strong form, pursuing more aggressively and achieving more effectively the same overarching goal. The only real difference is one of degree—where an anti-rulification rule limitsthe ability of lower courts to rulify standards, an anti-publication rule would limit that ability to an even greater extent. In that sense, then, the hypothetical possibility of anti-publication rules may shed some useful light on the non-hypothetical tradeoffs that anti-rulification rules actually present. Anti-publication rules showcase in especially stark and crystallized terms the basic but important insight that safeguarding a standard against subsequent rulification necessarily means encroaching on the methodological discretion of lower-court actors. That may well be a tradeoff worth making in a particular set of cases. But as I hope this Article has helped to illustrate, it is at least a tradeoff worth taking seriously.

Conclusion

Any system of adjudication must reconcile two basic tasks: resolving individual disputes and enunciating legal norms. These two tasks, as many commentators have noted, rest in uneasy repose. Efforts to ensure the fair and just resolution of cases often come at the expense of promoting the sound development of law, and vice versa. What is good for the parties to a particular dispute may be bad for the doctrine writ large; what is good for the doctrine writ large may be bad for the parties to a particular dispute. Many disagreements over the judge’s role boil down to this basic tradeoff: to what extent should courts act as mere resolvers of disputes, and to what extent should they act as active shapers of the law?199

The questions examined in this Article implicate the tension between the dispute resolution and law formulation models of judicial work. Those who emphasize the dispute resolution model should find much to like in anti-rulification rules, which help ensure comprehensive, holistic, and commonsensical judicial deliberation about each case that makes its way through the legal system. Those who favor the law declaration model, meanwhile, should find much to dislike in anti-rulification rules, whose very attempts to realize fairness at the retail level may frustrate courts’ efforts to develop workable and effective doctrine at the wholesale level. This is so, we have seen, because prohibiting the rulification of standards means inhibiting beneficial forms of thinking about and tinkering with the substance of the law itself. Additional complexities, to be sure, underlie this basic proposition. But the parallels nonetheless strike me as important and real. Simply put, mandatory standards reflect the values of the dispute resolver, whereas permissive standards reflect the values of the law declarer.

The irony remains, though, that rules against rulification are rules—reflecting, in other words, the law declarer’s command that dispute resolution matters most. This situation may seem inherently contradictory, though it need not be so. If one believes that only the Supreme Court should function as the exclusive developer of law within the judicial system, then it makes sense for the Court to exert its law-developing authority in a manner that ensures fair and faithful dispute resolution in the courts below. But insofar as one rejects this vision of the federal judiciary—as I do—then rules against rulification are not so easily justified. That is not to say that these rules have no place in a judicial system in which all courts have some say over the scope and substance of legal norms. But if the vision of our system is a collaborative one, in which the Supreme Court leads but does not go it alone in developing the law, then the Court should at least take care to promulgate its rules against rulification with due attention to the lawdeclaration downsides that they bring.