RULESWATCH

January 10, 2009

Rules, Standards and Guidelines

Filed under: 1 — ruleswatch @ 10:26 am

 

“Rules have great virtues, but they are limited because they are necessarily based on information possessed by the rulemaker when the rule was made. No rulemaker is omniscient. After the rule is promulgated, unforeseen circumstances are likely to arise to which the rule will be maladapted….
There are three alternatives to rules. One is standards. A fixed speed limit is a rule; negligence is a standard. A standard is less definite than a rule, which is a minus, but it is more flexible, which is a plus. …Another alternative to rules is discretion…The third alternative is presumptions or guidelines, which have the structure of rules–that is, are simple and definite–but which allow discretion in enforcement.

 

Comment of Richard Posner, The Becker Posner Blog, September 16, 2007

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