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Justice Scalia believed that the rule of law required a law of rules rather than of balancing tests. He favored rules (like the requirement the President be at least 35 years old) over standards (a requirement that the president be “a mature individual") because they lend themselves more to principled judicial enforcement. As a result, Justice Scalia revolutionized the caselaw he inherited from the Burger Court by eliminating as many balancing tests as possible and replacing them with rules. An example is his favoring of a rule of viewpoint neutrality in freedom of expression cases over separate treatment of various categories of speech. He believed that rules over standards promote the rule of law because they guarantee that judges will decide like cases alike rather than deciding each case on its facts using a totality of the circumstances test. Justice Scalia was so committed to rules over standards that he refused to enforce the non-delegation doctrine because to do so he would have had to employ a balancing test standard, however, in his last year on the bench, there were signs that Justice Scalia was moving away from this position. Justice Scalia also favored rules over standards because they limit lower federal and state court discretion in applying Supreme Court precedents as compared to balancing tests. The reemergence of rules over standards in Supreme Court opinions is another of Justice Scalia's legacies.

This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Showcase Panel II: Rules Versus Standards in Constitutional and Statutory Interpretation
9:00 a.m. – 11:00 a.m.
Grand Ballroom

  • Prof. Akhil Reed Amar, Sterling Professor of Law and Political Science, Yale University
  • Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Prof. John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Victoria Nourse, Professor of Law, Georgetown University Law Center
  • Moderator: Hon. William Francis Kuntz II, U.S. District Court, Eastern District of New York
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC