Abstract
This Article critiques the reliance on judge-made standards by the Supreme Court, arguing that such standards, while flexible and comprehensive, create significant challenges in application, particularly in lower courts. Standards, characterized by broad and adaptable language, grant judges considerable discretion, often resulting in inconsistent and unworkable outcomes. This phenomenon contributes to what Ran Hirschl terms “juristocracy,” where the judiciary exerts considerable influence over significant social, political, and economic issues, often due to implied deference from other branches of government. The analysis highlights the operational difficulties standards pose, especially the lack of objective criteria, which can lead to judicial misapplication and legal uncertainty. It further explores how this judicial discretion undermines predictability and stability in the law, particularly in cases involving fundamental rights and executive deference. By examining several appellate cases, this Article highlights the discrepancies and risks associated with the use of standards, emphasizing the need for the Supreme Court to adopt clearer, more rigid rules tethered closely to the Constitution’s text. This Article proposes that the Court should favor explicit rules over malleable standards to promote greater consistency and protection of individual rights, reducing judicial overreach and enhancing legal clarity. This shift would mitigate the juristocratic tendencies observed in the current judicial landscape and ensure that constitutional adjudication remains more aligned with democratic principles and less susceptible to individual judicial interpretations.
Recommended Citation
Bernstein, James
(2026)
"The Rule of Law's Lack of Rules,"
University of Memphis Law Review: Vol. 55:
Iss.
4, Article 1.
Available at:
https://digitalcommons.memphis.edu/um-law-review/vol55/iss4/1