The Rule of Law As A Law of Rules

University of Chicago Law Review
The Rule of Law as a Law of Rules

Author(s): Antonin Scalia
Source: The University of Chicago Law Review, Vol. 56, No. 4 (Autumn, 1989), pp. 1175-1188
Published by: University of Chicago Law Review
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The
University
of Chicago
Law Review|
VOLUME 56 NUMBER 4 FALL 1989
?1989 by The University

of Chicago
The Rule of Law as a Law of Rules

AntoninScaliat
Louis IX ofFrance,Saint Louis,was renownedforthefairand
evenhandedmannerin whichhe dispensedjustice.We have the
following
accountfromThe Life ofSaint Louis written
by Johnof
a noblemanfromChampagneand a close friendof the
Joinville,
king:
In summer,afterhearingmass, the kingoftenwentto the
wood of Vincennes,wherehe would sit downwithhis back
againstan oak,and makeus all sit roundhim.Those whohad
any suit to presentcould cometo speak to himwithouthindrancefroman usheror any otherperson.The kingwould
addressthemdirectly,
and ask: "Is thereanyoneherewhohas
a case to be settled?"Those who had one would stand up.
Then he wouldsay: "Keep silentall of you,and you shall be
heardin turn,one afterthe other."'
The judgmentstherepronounced,under the oak tree,were regardedas eminently
just and good-thoughas faras I knowLouis
IX had no particulartrainingin the customary
law of any of the
?
1989AntoninScalia
Copyright
t AssociateJustice,
UnitedStatesSupremeCourt.This essaywas firstdeliveredas the
on February14, 1989.
OliverWendellHolmes,Jr.Lectureat HarvardUniversity
1 Jeande Joinville,
&
The LifeofSaint Louis,in MargaretR. B. Shaw,transl,Joinville
Villehardouin:
Chroniclesof the Crusades163,177 (Penguin,1963).
1175
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of ChicagoLaw Review
1176
[56:1175
countiesof France,or any otherlegal training.King Solomonis

also supposedto havedonea prettygoodjob, withoutbenefitofa
law degree,dispensing
justicecase-by-case.
That is one imageofhowjusticeis done-one case at a time,
takingintoaccountall the circumstances,
and identifying
within
thatcontextthe"fair"result.It maynotbe as outmodedan image
as one mightthink,considering
the popularity
ofJudgeWapner.
And yet whatwouldTom Paine have thoughtof this,who
said:
[L]et a day be solemnly
set apartforproclaiming
thecharter;
let it be broughtforth. . . [so] the worldmayknow,thatso
farwe approveofmonarchy,
thatin Americathe law is king.
For as in absolutegovernments
the kingis law, so in free
countries
the law oughtto be king;and thereoughtto be no
other.2
As usual,ofcourse,theGreekshad the samethought-andput it

states:
somewhatmoredispassionately.
In his Politics,Aristotle
laws shouldbe the finalsovereign;and
Rightlyconstituted
personalrule,whetherit be exercisedby a singlepersonor a
bodyofpersons,shouldbe sovereign
onlyin thosematterson
whichlaw is unable,owingto thedifficulty
offraming
general
rulesforall contingencies,
to makean exactpronouncement.3
It is thisdichotomy
between"generalruleof law" and "personal
discretion
to do justice"thatI wishto explore.
In a democratic
system,of course,the generalruleof law has
specialclaimto preference,
sinceit is the normalproductof that
branchof government
mostresponsiveto the people.Executives
and judges handle individualcases; the legislaturegeneralizes.
Statutesthatare seenas establishing
rulesofinadequateclarityor
precisionare criticized,
on thataccount,as undemocratic-and,
in
theextreme,
unconstitutional-because
theyleave too muchto be
decidedby personsotherthanthe people'srepresentatives.
But in the contextof thisdiscussion,
thatparticularvalue of
havinga generalruleoflaw is besidethe point.For I wantto explorethedichotomy
betweengeneralrulesand personaldiscretion
withinthe narrowcontextof law thatis made by thecourts.In a
2
Thomas Paine, CommonSense, in Nelson F. Adkins,ed, CommonSense and Other
Political Writings3, 32 (Liberal Arts,1953).
3 Ernest Barker,transl,The Politics of Aristotle,book III, ch xi, ? 19 at 127 (Oxford,
1946).
1989]
A Law of Rules
1177
judicialsystemsuch as ours,in whichjudges are bound,not only

but also by thepriordecisions
by thetextofcode or Constitution,
of superiorcourts,and even by the priordecisionsof theirown
court,courtshave the capacityto "make" law. Let us not quibble
about the theoreticalscope of a "holding";the modernreality,at
least,is thatwhenthe SupremeCourtofthe federalsystem,or of
one ofthestatesystems,
decidesa case,notmerelytheoutcomeof
thatdecision,but the modeofanalysisthatit applieswillthereafterbe followedbythelowercourtswithinthatsystem,
and evenby
thatsupremecourtitself.And by makingthemodeofanalysisrelativelyprincipledor relativelyfact-specific,
the courtscan either
establishgeneralrulesor leave ample discretionforthe future.
In deciding,for example,whethera particularcommercial
agreement
containing
a verticalrestraintconstitutes
a contractin
restraintof tradeunderthe ShermanAct,4a courtmay say that
underall the circumstances
the particularrestraintdoes not undulyinhibitcompetition
and is therefore
lawful;or it maysay that
no verticalrestraints
undulyinhibitcompetition,
and sincethisis
a verticalrestraintit is lawful.The formeris essentiallya discretion-conferring
approach;the latterestablishesa generalrule of
law.
The advantagesof the discretion-conferring
approachare obAll
vious.
generalizations
(including,I know,the presentone) are
to somedegreeinvalid,and henceeveryruleof law has a fewcornersthatdo notquitefit.It followsthatperfect
justicecan onlybe
achievedifcourtsare unconstrained
by such imperfect
generalizations.Saint Louis wouldnot have done as well if he werehamtest.
peredby a code or a judiciallypronouncedfive-part
Of course,in a systemin whichpriordecisionsare authoritato laterjudges.It is all a
tive,no opinioncan leave totaldiscretion
matterof degree.At least the veryfactsof the particularcase are
coveredforthefuture.But stickingcloseto thosefacts,notrelying
uponoverarching
generalizations,
and therebyleavingconsiderable
roomforfuturejudgesis thoughtto be the geniusofthecommonlaw system.The law growsand develops,the theorygoes, not
butcase-by-case,
thepronouncement
ofgeneralprinciples,
through
deliberately,
incrementally,
one-step-at-a-time.
Today we decide
thattheseninefactssustainrecovery.
Whetheronlyeightof them
willdo so-or whetherthe additionofa tenthwillchangethe outcome-are questionsforanotherday.
4 Sherman Act, 15 USC ? 1 (1982).
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WhenI was in law school,I was a greatenthusiastforthis

approach-an advocateof bothwriting
and readingthe "holding"
ofa decisionnarrowly,
therebyleavinggreaterdiscretion
to future
courts.Overtheyears,however-andnotmerelytheyearssinceI
havebeena judge-I have foundmyselfdrawnmoreand moreto
theoppositeview.Thereare a numberofreasons,sometheoretical
and someverypracticalindeed.
in judicial decisions
To beginwith,the value of perfection
shouldnot be overrated.
To achievewhatis, fromthe standpoint
of the substantivepolicies involved,the "perfect"answer is
nice-but it is just one ofa numberof competing
values.Andone
ofthemostsubstantial
ofthosecompeting
values,whichoftenconis theappearanceofequal treattradictsthesearchforperfection,
ment.As a motivating
forceofthehumanspirit,thatvaluecannot
be overestimated.
Parentsknowthat childrenwill accept quite
readilyall sortsofarbitrary
substantive
dispositions-notelevision
in theafternoon,
or no televisionin theevening,
or evenno television at all. But tryto let one brotheror sisterwatchtelevision
whenthe othersdo not,and you willfeelthe furyof the fundamentalsense of justiceunleashed.The Equal ProtectionClause
epitomizes
justicemorethanany otherprovisionof the Constitution.And the troublewiththe discretion-conferring
approachto
judiciallaw makingis thatit does notsatisfythissenseofjustice
verywell.Whena case is accordeda different
disposition
froman
earlierone, it is important,
if the systemof justice is to be
respected,
notonlythatthe latercase be different,
but thatit be
seen to be so. Whenone is dealing,as myCourtoftenis, withissues so heartfelt
thattheyare believedby one side or theotherto
be resolvedbytheConstitution
itself,it does notgreatlyappeal to
one'ssenseofjusticeto say:"Well,thatearliercase had ninefactors,thisone has nineplusone."Muchbetter,evenat theexpense
of the mild substantivedistortionthat any generalization
introduces,
to have a clear,previously
enunciatedrulethatone can
pointto in explanationof the decision.
The common-law,
discretion-conferring
approachis ill suited,
moreover,
to a legalsystemin whichthesupremecourtcan review
onlyan insignificant
proportion
of the decidedcases. The idyllic
notionof"thecourt"gradually
closingin on a fullyarticulated
rule
of law by decidingone discretefactsituationafteranotheruntil
(byprocessofelimination,
as it were)thetrulyoperativefactsbecomeapparent-thatnotionsimplycannotbe appliedto a court
thatwillrevisitthe area in questionwithgreatinfrequency.
Two
termsago,the numberof federalcases heardby myCourtrepre-
1989]
A Law ofRules
1179
sentedjust aboutone-twentieth
of one percentof all the cases decidedby federaldistrictcourts,and less thanone-halfof one percentof all cases decidedby federalcourtsof appeals.6The factis
thatwhenwe decidea case on the basis of whatwe have cometo
call the "totalityof the circumstances"
test,it is not we who will
be "closingin on the law" in the foreseeablefuture,but rather
thirteendifferent
courtsof appeals-or, ifit is a federalissuethat
can arisein state courtlitigationas well,thirteendifferent
courts
of appeals and fiftystate supremecourts.To adopt such an approach,in otherwords,is effectively
to concludethatuniformity
is
not a particularly
importantobjectivewith respectto the legal
questionat issue.
This last pointsuggestsanotherobviousadvantageof establishingas soon as possiblea clear,generalprincipleof decision:
predictability.
Even in simplertimes uncertainty
has been regardedas incompatible
withthe Rule ofLaw. Rudimentary
justice
requiresthat those subjectto the law must have the means of
knowingwhatit prescribes.It is said thatone of emperorNero's
nastypracticeswas to post his edictshighon the columnsso that
theywouldbe harderto readand easierto transgress.
As lawshave
becomemorenumerous,and as people have becomeincreasingly
readyto punishtheiradversariesin thecourts,we can less and less
affordprotracteduncertainty
regardingwhat the law may mean.
is a needful
Predictability,
or as Llewellynput it,"reckonability,"6
characteristic
of any law worthyof the name. There are times
wheneven a bad rule is betterthanno rule at all.
I had alwaysthoughtthat the common-law
approachhad at
least one thingto be said forit: it was the courseof judicial restraint,"making"as littlelaw as possiblein orderto decide the
case at hand.I have cometo doubtwhetherthatis true.For when,
in writing
forthemajority
ofthe Court,I adopta generalrule,and
say,"This is the basis of our decision,"I not onlyconstrainlower
courts,I constrainmyselfas well.If thenextcase shouldhavesuch
the
different
factsthatmypoliticalor policypreferences
regarding
outcomeare quite the opposite,I will be unable to indulgethose
I havecommitted
preferences;
myself
to thegoverning
principle.In
the real worldof appellatejudging,it displaysmorejudicial restraintto adoptsucha coursethanto announcethat,"on balance,"
we thinkthelaw was violatedhere-leavingourselvesfreeto say in
Annual Report of the Director of the AdministrativeOfficeof the United States
Courts 4, 7, 15 (GPO, 1988).
6 See Karl N. Llewellyn,The Common Law Tradition 17 (Little, Brown, 1960).
6
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the nextcase that,"on balance,"it was not.It is a commonplace

thatthe one effective
checkupon arbitrary
judgesis criticism
by
the bar and the academy.But it is no morepossibleto demonstratethe inconsistency
of twoopinionsbased upona "totalityof
thecircumstances"
testthanit is to demonstrate
theinconsistency
of twojuryverdicts.Onlyby announcing
rulesdo we hedgeourselvesin.
While announcinga firmrule of decisioncan thus inhibit
courts,strangely
enoughit can emboldenthemas well.Judgesare
sometimes
calleduponto be courageous,
becausetheymustsomethe
timesstandup to whatis generally
supremein a democracy:
are to propopularwill.Theirmostsignificant
roles,in oursystem,
tectthe individualcriminaldefendantagainstthe occasionalexcessesofthatpopularwill,and to preserve
thechecksand balances
withinourconstitutional
systemthatare preciselydesignedto inhibit swiftand completeaccomplishment
of that popularwill.
Those are taskswhich,properly
performed,
mayearnwidespread
respectand admirationin the long run,but-almost by definition-neverin theparticular
case. The chancesthatfrailmenand
womenwillstandup to theirunpleasantdutyare greatly
increased
iftheycan standbehindthe solidshieldof a firm,clearprinciple
in earliercases.It is verydifficult
enunciated
to saythata particular convicted
felonwhois theobjectofwidespreadhatredmustgo
freebecause,on balance,we thinkthatexcludingthe defenseata
torneyfromtheline-upprocessin thiscase mayhaveprevented
fairtrial.It is easierto saythatourcases plainlyholdthat,absent
suchexclusionis a perse denialofdue proexigentcircumstances,
cess.7Or to takean exampleinvolving
the otherprincipaljudicial
role:Whenthepeopleare greatlyexercisedabout"overregulation"
in a particular
bythe"nameless,facelessbureaucracy"
agency,and
Congressrespondsto thisconcernby enactinga popularscheme
forlegislative
vetoof thatagency'sregulations-warmly
endorsed
by all thebestnewspapers-itis verydifficult
to say that,on balance, thistakes awaytoo muchpowerfromthe Executive.It is
easierto saythatourcasesplainlyholdthatCongresscan formally
controlExecutiveactiononlyby law.8
Let me turn,briefly,
fromthe practicalto the theoretical,
to
suggestthatwhenan appellatejudgecomesup withnothing
better
thana totality
ofthecircumstances
testto explainhis decision,he
is notso muchpronouncing
the law in thenormalsenseas engag7
United States v. Wade, 388 US 218 (1967).

See INS v Chadha, 462 US 919 (1983).
1989]
A Law ofRules
1181
That is certainly
ing in the less exaltedfunctionof fact-finding.
ofapplyingthemostvenerabletotalhowwe describethefunction
test of themall-the "reasonableman"
ity of the circumstances
negligencein the law of torts.At the
standardfor determining
of
likeeverydetermination
margins,
ofcourse,thatdetermination,
purefactor mixedfactand law,can becomean issueoflaw-if, for
example,thereis no evidenceon whichany jury can reasonably
And even shortof that extreme,the courtshave
findnegligence.
rule,
introduced
someelementsoflaw intothe determination-the
prescribedsafefor example,that disregardof some statutorily
guardsis negligenceper se,0or the oppositerulethat compliance
of
withall the requirements
ofcertainstatutesprecludesa finding
negligence.'0
But whenall those legal rules have been exhausted
and haveyieldedno answer,we call whatremainsto be decideda
questionof fact-whichmeans not onlythat it is meantforthe
juryratherthanthejudge,but also thatthereis no single"right"
answer.It could go eitherway.Only,as I say,at the marginscan
mustcomeout the
an appellatejudge say thatthisdetermination
otherwayas a matterof law.
Why,one reasonablymay wonder,should that not be the
to further
prinstatusofall questionsthatdo notlendthemselves
Whyshouldthequestionwhethera personexercipledresolution?
cised reasonablecare be a question of fact, but the question
whethera searchor seizurewas reasonablebe a questionof law?
The latter,likethe former,
lendsitselfto ordinationby ruleup to
a point.We can say,as we have,thata searchofa homeis always
ifa warrantis notobabsentexigentcircumstances,
unreasonable,
tained,"and thatit is alwaysunreasonable(apartfromthefieldof
administrative
searches)'2wherethereis no probablecause to believethata crimehas occurred.But oncethoseand all otherlegal
ruleshave been exhausted,and the answeris stillnotclear,whyis
the totality
considering
not whatremains-thequestionwhether,
of the circumstances,this particularsearch was unreasonable-treated as a questionof fact,as to whichthe law shouldnot
expect,or seek to imposethroughde novoappellatereview,a single,correctanswer?
One conceivableanswerto theriddleofwhy"reasonablecare"
9 See W. Page Keeton,et al, eds,Prosser and Keeton on the Law of Torts ? 36 at 22931 (West,5thed 1984).
Id at 233.
" Steagald v. United States, 451 US 204, 211 (1981).
12 Camara v. Municipal Court, 387 US 523, 535 (1967).
'0
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is a questionof factbut "reasonablesearch"a questionof law is

thatwe do nottrustjuriesto answerthelatterquestiondispassionatelywhenan obviouslyguiltydefendant
is in the dock.If thatis
thereason,it is nota reasonthatwe applyconsistently.
We let the
jurydecide,forexample,whether
or nota policemanfiredupona
felonin unavoidableself-defense,
thoughthatalso is not a questionon whichthe jurorsare likelyto be dispassionate.Perhaps,
then,the answeris that "reasonablesearch"is a constitutional
standard,and whether
sucha standardhas been metmustbe left
to the judges.Again,however,if thatis the reasonit is not one
thatwe applyconsistently.
on restraint
Prohibition
of "the freedomofspeech"is also to be foundin theConstitution,
butwe generallyletjuriesdecidewhether
certainexpression
so offends
communitystandardsthatit is notspeechbut obscenity.'3
I frankly
do notknowwhywe treatsomeofthesequestionsas
mattersof factand othersas mattersof law-thoughI imagine
thattheirrelativeimportance
to ourlibertieshas muchto do with
it. Mypointhere,however,
is notthatwe shouldundertake
a massive recategorization,
and leave a lot moreof thesequestionsto
juries,butsimplythatwe shouldrecognize
that,at thepointwhere
an appellatejudge saysthatthe remaining
issue mustbe decided
on thebasisofthetotalityofthecircumstances,
or by a balancing
of all the factorsinvolved,he beginsto resemblea finderof fact
morethana determiner
oflaw.To reachsucha stageis,in a way,a
regrettable
concessionofdefeat-an acknowledgment
thatwe have
passedthe pointwhere"law,"properly
speaking,has any further
application.And to reiteratethe unfortunate
practicalconsequencesof reachingsuch a pass whentherestillremainsa good
deal ofjudgmentto be applied:equalityoftreatment
is difficult
to
demonstrate
and, in a multi-tiered
judicialsystem,impossibleto
achieve;predictability
is destroyed;
judicialarbitrariness
is facilitated;judicialcourageis impaired.
I standwithAristotle,
then-whichis a prettygood place to
stand-in theviewthat"personalrule,whether
it be exercisedby
a singlepersonor a bodyof persons,shouldbe sovereign
onlyin
thosematterson whichlaw is unable,owingto the difficulty
of
framing
generalrulesforall contingencies,
to makean exactproIn the case of court-made
nouncement."'4
law, the "difficulty
of
framing
generalrules"arisesnot merelyfromthe inherent
nature
ofthesubjectat issue,butfromtheimperfect
scopeofthemateri3
4
See Jenkinsv Georgia,418 US 153 (1974).

Aristotle'sPolitics, ch xi, ? 19 at 127 (cited in note 3).
1989]
A Law ofRules
1183
als thatjudges are permittedto consult.Even wherea particular

area is quite susceptibleof clearand definiterules,we judgescannot createthemout of wholecloth,but mustfindsome basis for
has provided.It
themin thetextthatCongressor theConstitution
thateventhemostvagueand generaltextcannot
is rare,however,
be givensome precise,principledcontent-and that is indeedthe
essenceofthejudicialcraft.One can hardlyimaginea prescription
comof contracts,
morevaguethanthe ShermanAct'sprohibition
binationsor conspiraciesin restraintof trade,'5but we have not
approach
interpreted
it to requirea totalityof the circumstances
in everycase. The trickis to carrygeneralprincipleas faras it can
of the precisestatutoryor constitugo in substantialfurtherance
because,as I
tional prescription.
I say "substantialfurtherance"
no
suggestedearlier, generalprinciplecan achievea perfectfit.It
bemay well be possibleto envisionsome divisionsof territory
retweencompetitors
that do not,in the peculiarcircumstances,
duce competition-butsuch phenomenawouldbe so rarethatthe
farexceedsthe
divisionsof territory
benefitof a rule prohibiting
slightlythe precise congressional
harm caused by overshooting
expressedthe test forper se Sherman
goal. As we have correctly
Act illegality,
it is whetherthe typeof conductin question"would
and decrease
alwaysor almostalwaystendto restrictcompetition
commandsinto
output.""6Such reductionof vague congressional
of legislarulesthatare less thana perfectfitis not a frustration
tiveintentbecausethatis whatcourtshave traditionally
done,and
hencewhatCongressanticipateswhenit legislates.One can conceive of a statutein whichCongressmakesclear thatthe totality
ofthe circumstances
is alwaysto be considered.(See, forexample,
in? 2(b) of the VotingRightsAct.)"7But unlesssuch a statutory
assumethat"cattentis expressor clearlyimplied,courtsproperly
egorical decisions may be appropriateand individualcircumstances disregardedwhen a case fitsinto a genus in whichthe
"18
balancecharacteristically
tips in one direction.
Of course,the extentto whichone can elaborategeneralrules
commanddependsconsiderably
or constitutional
froma statutory
upon how clear and categoricalone understandsthe commandto
5
1
17
15 USC ? 1.
Broadcast Music, Inc. v CBS, 441 US 1, 19-20 (1979) (emphasis added).
VotingRightsActof 1965? 2(b), 42 USC ? 1973(b)(1982) ("A violationofsubsec-
tion (a) is established if,based on the totalityof circumstances,it is shown that the political
processes leading to nomination or election . . . are not equally open to participation by
membersof a class of citizens protected by subsection (a)....").
18 United States Dept. of Justice v Reporters Committee,109 S Ct 1468, 1483 (1989).
1184
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be, whichin turndependsconsiderably

uponone's methodoftextualexegesis.For example,it is perhapseasierforme thanit is for
somejudgesto developgeneralrules,becauseI am moreinclined
to adherecloselyto theplainmeaningofa text.That explainsthe
difference
betweenme and mostof mycolleaguesin Michiganv
a recentcase involving
Chesternut,19
the questionwhethera defendanthad been"seized"forpurposesoftheFourthAmendment.
The defendant
was running
awayfroma policecar,whichinitially
him
followed and ultimately
drovealongsidehim.Whilethusengaged in what musthave looked like a footrace witha police
cruiser,he droppeda packetof illegaldrugs,whichthe policerecovered.If these eventsamountedto a seizure,and if probable
cause was lacking,the evidencewas inadmissible
and the convictionforunlawful
possessionwouldhaveto be reversed.
The Court
specifically
declinedto holdeitherthata chasewithouta stopwas
a seizureor that a chase withouta stop could not be a seizure.
Rather,the Courtconsultedthe totalityof the circumstances
to
determine
whether
a personin thedefendant's
positionwouldhave
feltthathe was freeto disregard
thepoliceand go abouthis business.That setsfortha ruleofsorts-it is muchmoreprecisethan
the
askingwhether,
considering
the totalityof the circumstances,
defendant
had beenseized.But I thought
thatthelaw couldproperlybe madeevenmoreprecise.I joinedJusticeKennedy'sconcurrence,whichsaid thatpoliceconductcannotconstitute
a "seizure"
until(as thatwordconnotes)it has had a restraining
effect.20
Justas thatmanneroftextualexegesisfacilitates
theformulationofgeneralrules,so does,in theconstitutional
field,adherence
to a moreor less originalist
theoryofconstruction.
The rawmaterialforthegeneralruleis readilyapparent.If a barnwas notconsideredthe curtilageof a house in 1791 or 1868 and the Fourth
Amendment
did notcoverit then,unlawful
entryintoa barntoday
may be a trespass,but not an unconstitutional
search and
It is moredifficult,
it seemsto me,to derivesucha cateseizure.2"
notionsofpersonalprivacy.
goricalgeneralrulefromevolving
Similarly,evenifone rejectsan originalist
approach,it is easierto arriveat categoricalrulesif one acknowledges
that the contentof
evolvingconceptsis strictly
limitedby the actualpracticesof the
in the laws enactedby its legislatures.
society,as reflected
It is, of course,possibleto establishgeneralrules,no matter
1'
20
21
486 US 567, 108 S Ct 1975 (1988).

108 S Ct at 1981 (Kennedy concurring).
See United States v. Dunn, 480 US 294 (1987).
1989]
A Law ofRules
1185
one employs.As one

or construction
whattheoryof interpretation
cynichas said, withfivevotesanythingis possible.But whenone
does not have a solid textualanchoror an establishedsocial norm
appears
fromwhichto derivethe generalrule,its pronouncement
like legislation.If I did not considermyjudgment
uncomfortably
text,or at least
governedby the originalmeaningof constitutional
I would
in extantlegislation,
by currentsocialpracticeas reflected
decidingcase-by-casewhether,taking
feel relativelycomfortable
the death sentenceforthis
intoaccountall of the circumstances,
particularindividualwas "cruel and unusual"-but I would feel
by nothing
firmrules(legitimated
announcing
quiteuncomfortable
the relevanceof such matbut myownsenseofjustice)regarding
mentalcapacity,intentto take a
tersas the age of the defendant,
life,and so forth.
of broadlyapplicable
Since I believethat the establishment
ofthejudicialprocess,
generalprinciplesis an essentialcomponent
I am inclinedto disfavor,withoutclear congressional
command,
of causes of actionthat do not readilylend
the acknowledgement
to such an approach.In the area of the negativeComthemselves
merceClause,forexample,it seemsto me one thingto undertake
uninvitedjudicial enforcement
of the principle(neverenunciated
againstinterby Congress)thata statecannotovertlydiscriminate
state commerce.That is a generalprincipleclear in itself,and
therecan be littlevariationin applyingit to the facts.It is quite
to recognizea cause ofactionto challenge
something
else,however,
comstatelaws thatdo not overtlydiscriminate
againstinterstate
merce,but affectit to an excessivedegree,giventhe value of the
stateintereststherebyprotected.The lattercan onlybe adjudged
by a standardlessbalancing,and so I am not inclinedto findan
withinArticleI of the
invitationfor such judicial enforcement
Constitution.22
observationregarding
The last pointsuggestsa parenthetical
the recenteliminationof virtuallyall of the SupremeCourt'sreUntilcomingto the Court,I had
jurisdiction.23
mainingmandatory
never noticedwhat a high proportionof its CommerceClause
cases-so popularin the law school casebooks-involvedappeals
22 See Tyler Pipe Industries v Wash St Dept of Revenue, 483 US 232, 254 (1987)
(Scalia concurringand dissentingin part).
23 Compare 28 USC ? 1257 (1982) (providingfor Supreme Court review,by appeal, of
certain finaljudgments rendered by state supreme courts,includingjudgments concerning
the validityof state statutes) with 28 USC ? 1257 (1989 Supp) (eliminatingreviewby appeal
and providingforSupreme Court review by writ of certiorari).
1186
The University
[56:1175
The reasonis understandable

ratherthanpetitionsforcertiorari.
enough.To an inordinate
degree,thesecases involvedstatestatacts,thatwerechallengedunder
utes,ratherthanadministrative
the federalConstitution
and upheldbelow-thus meetingthe reIt willbe intermandatory
jurisdiction.
quirements
forourformer
willbe
estingto see whetherour CommerceClause jurisprudence
in thefuture,
as extensive
whenthesecasescan be avoidedwithout
thatthereis no substantialfederalquestioninvolved.
determining
Myguess(orperhapsit is just myhope) is thatit willbe considerin the categoryof cases wherewe
ablyless extensive,
particularly
of
state
interests
againstimpairment
havecalledfora balancingof
commerce-whether
thegoodto thestatedonebytherequirement
of trucklengths,26
or
or the limitation
of mud-guards
on trucks,24
For
commerce.
whateverelse,outweighs
the burdenon interstate
whenbalancingis themodeofanalysis,notmuchgeneralguidance
may be drawnfromthe opinion-just as not muchgeneralguidance maybe drawnfroman opinionsettingaside a singlejury
verdictbecausein thatparticularcase the evidenceof negligence
was inadequate.Of courseeach opinionwillstraighten
outthelaw
of an entirestate-but unlesstherehas arisena state-court
fedI thinkwe will be littletemptedto intervene
eral-court
conflict,
whenthe settledlaw belowseemsat least reasonable.
I maybe wrongin thatprediction.
We certainly
take,on cercases in whichthe questiorari,a numberof FourthAmendment
in this
tionseemsto me ofno moregeneralinterest
thanwhether,
factsituation,
particular
pattern3,445,the searchand seizurewas
reasonable.It is myinclination-oncewe havetakenthelaw as far
as it can go,oncethereis no generalprinciplethatwillmakethis
searchvalid or invalid,once thereis nothingleftto be
particular
donebutdetermine
fromthetotality
ofthecircumstances
whether
thissearchand seizurewas "reasonable"-toleave thatessentially
factualdetermination
to thelowercourts.We shouldtakeone case
nowand then,perhaps,just to establishthe marginsof tolerable
But beyondthat,just as we toleratea fairdegreeof didiversity.
I thinkwe can
to be negligence,
versityin whatjuriesdetermine
to be
toleratea fairdegreeof diversity
in whatcourtsdetermine
reasonableseizures.
Lest theobservations
in thisessaybe usedagainstme unfairly
in thefuture,
to whatI havenotsaid. I have
let me call attention
notsaid thatlegaldeterminations
thatdo notreflect
a generalrule
24
25
See Bibb v Navajo FreightLines, 359 US 520 (1959).

See Kassel v Consolidated FreightwaysCorp., 450 US 662 (1981).
A Law of Rules
1989]
1187
can be entirely
avoided.We willhave totalityofthe circumstances
testsand balancingmodesof analysiswithus forever-andformy
sins,I willprobablywritesomeoftheopinionsthatuse them.All I
urge is that those modes of analysisbe avoided wherepossible;
thatthe Rule of Law, the law of rules,be extendedas faras the
natureofthequestionallows;and that,to fostera correctattitude
towardthematter,we appellatejudgesbear in mindthatwhenwe
have finallyreachedthe pointwherewe can do no morethanconsult the totalityof the circumstances,
we are actingmoreas factfindersthanas expositorsof the law. I have not eventriedto addressthehardestquestion,whichis: Whenis sucha modeofanalysisavoidableand whennot?To whatextentdo the valuesof the
Rule ofLaw, whichI have described,
justifytheimprecision
thatit
necessarily
introduces?
At whatpointmustthe Rule of Law leave
offand the restbe leftto the facts?
The difficulty
of answeringthose questionsis well enough
demonstrated
by the conflicting
opinionsof two of our greatest
Justices,withwhichI will conclude.They come fromthe days
whenthe SupremeCourthad enoughtimethatit eventookdiversitycases. In Baltimore& Ohio RR Co v Goodman,26
a suit for
wrongful
deathof a driverwhosetruckwas struckby a train,the
railroadhad (of course)lost a juryverdict,and was tryingto get
thejudgmentoverturned
on thebasis ofcontributory
negligence
as
a matterof law. It succeeded.JusticeHolmeswroteas follows:
Whena mangoesupona railroadtrackhe knowsthathe goes
to a place wherehe will be killedif a traincomesupon him
beforehe is clearofthetrack.He knowsthathe muststopfor
it
the train,notthe trainstopforhim.In such circumstances
seemsto us thatifa drivercannotbe sureotherwise
whether
a trainis dangerously
near he muststop and get out of his
vehicle,althoughobviouslyhe willnotoftenbe requiredto do
morethan to stop and look. It seems to us that if he relies
upon not hearingthe trainor any signaland takesno further
precautionhe does so at his own risk.If at the last moment
it was his ownfault
Goodmanfoundhimselfin an emergency
thathe did notreducehis speed earlieror cometo a stop.It is
true. . . thatthe questionof due care verygenerallyis leftto
thejury.But we are dealingwitha standardof conduct,and
whenthe standardis clearit shouldbe laid downonce forall
28
275 US 66 (1927).
1188
The University
by the Courts.27
Sevenyearslater-afterHolmeshad leftthe Court-in Pokorav
Wabash Railway Co,28 anotherdiversitycase involvinganother
truckdriverstruckby a train,JusticeCardozowroteas follows:
Standardsofprudentconductare declaredat timesbycourts,
buttheyare takenoverfromthefactsoflife.To getout ofa
vehicleand reconnoitre
is an uncommon
precaution,
as everydayexperience
informs
us. Besidesbeinguncommon,
it is very
likelyto be futile,and sometimeseven dangerous.If the
driverleaveshis vehiclewhenhe nearsa cut or curve,he will
learnnothing
bygetting
outabouttheperilsthatlurkbeyond.
By thetimehe regainshis seat and setshis car in motion,the
hiddentrainmaybe upon him....
Illustrations
such as these bear witnessto the need for
cautionin framing
standardsofbehaviorthatamountto rules
of law. The need is the moreurgentwhenthereis no background of experienceout of which the standards have
emerged.Theyare then,notthe naturalflowerings
of behaviorin itscustomary
forms,
butrulesartificially
developed,and
imposed fromwithout.Extraordinary
situationsmay not
wiselyor fairlybe subjectedto testsor regulations
that are
fittingforthe commonplace or normal.In defaultof the
guideof customary
conduct,whatis suitableforthe traveler
caughtin a meshwheretheordinary
failhimis for
safeguards
the judgmentof a jury.The opinionin Goodman'scase has
beena sourceofconfusion
in the federalcourtsto theextent
thatit imposesa standardforapplicationby the judge,and
has had onlywavering
supportin thecourtsofthestates.We
limitit accordingly.29
27
28
29
Id at 69-70.
292 US 98 (1934).
Id at 104-06 (citationsomitted).

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University of Chicago Law Review

The Rule of Law as a Law of Rules

VOLUME 56 NUMBER 4 FALL 1989

?1989 by The University

The Rule of Law as a Law of Rules

countiesof France,or any otherlegal training.King Solomonis

As usual,ofcourse,theGreekshad the samethought-andput it

judicialsystemsuch as ours,in whichjudges are bound,not only

WhenI was in law school,I was a greatenthusiastforthis

the nextcase that,"on balance,"it was not.It is a commonplace

United States v. Wade, 388 US 218 (1967).

is a questionof factbut "reasonablesearch"a questionof law is

See Jenkinsv Georgia,418 US 153 (1974).

als thatjudges are permittedto consult.Even wherea particular

VotingRightsActof 1965? 2(b), 42 USC ? 1973(b)(1982) ("A violationofsubsec-

be, whichin turndependsconsiderably

486 US 567, 108 S Ct 1975 (1988).

one employs.As one

The reasonis understandable

See Bibb v Navajo FreightLines, 359 US 520 (1959).

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