Rules v. Standards Across Constitutional Rights
posted by Erica Goldberg
I’ll admit my bias: I desire for the law to be clear and elegant. In law school, I preferred rules over standards (this has relaxed somewhat with age). Part of what drew me to the legal academy was the opportunity to produce scholarship that closes logical loopholes in jurisprudence, unifies inconsistent doctrines, and harmonizes precedent. At the margins, I’d often rather the law be more clear than more “correct.”
This bias may stem from an innate personality attribute (some of us are foxes and some are hedgehogs), or a belief that clarity promotes the rule of law. It is also likely that my initial area of interest and scholarship, First Amendment law, influenced my approach. An abundance of fact-bound inquiries and totality of the circumstances tests would eviscerate the spirit of free speech protected by the Amendment. First Amendment law is not without its balancing, but most of us have internalized the idea that judges are not generally permitted to decide which speech of private citizens has value and which speech does not. The First Amendment reflects a deep fear that those in power will dictate community values. Clear rules are necessary to prevent corruption of the doctrine, and the slope is considered very slippery. These clear rules are what led eight Justices on the Supreme Court to decide that the Westboro Baptist Church has the right to spew their simultaneously incoherent and pointedly hateful message, and for the same eight Justices to hold that depictions of animal cruelty are protected speech. These rules are why we can burn the flag as symbolic speech.
In teaching Criminal Procedure, I have repeatedly been struck by the fact that this sort of clarity is sorely lacking from cases concerning restrictions on criminal prosecution. It’s easy to come up with hypos for Crim Pro, because it’s so often unclear how a new fact pattern will be decided by the Court. Do suspected terrorists deserve their Miranda rights? Surely, they do. Miranda was intended as a bright-line test for suspects receiving custodial interrogation. Yet, somehow, both Senator McCain and the Obama administration feel that the decidedly narrow public-safety exception to Miranda may apply to this entire class of people.
I recently wrote a piece for Michigan Law Review’s online journal about why United States v. Jones will restore our faith in the Fourth Amendment. Jones added a property-based approach to the Fourth Amendment jurisprudence that has the potential to be much clearer and less subjective than the current “reasonable expectation of privacy” analysis. Although courts will now have to look to property law to determine whether the government has intruded upon a property right, and judges can interpret property law differently, at least there is some touchstone outside of their own subjective understanding of which privacy rights we deserve.
In light of the comments to Sunday’s blog post on the reliability of drug sniffing dogs, I wonder if the same degree of clarity/precision/rigidity is as necessary or as desirable in other areas of the law as it is in the First Amendment. The changing technology, police tactics, and trends in criminality may render the Fourth Amendment less amenable to the type of clarity and unifying principles that we hedgehogs desire. Do we have less reason to fear the importation of values, factual exigencies, and prejudices in the Fourth Amendment context, and, further, are they critical to the analysis? As technology improves, and we share all of our thoughts and feelings over the Internet anyway, perhaps there is a lesser role for privacy, and judges can balance privacy interests against public safety. On the other hand, there is a danger that we as a society will become more comfortable with greater intrusions into our privacy, persons, and property by the government, and courts should oppose this trend, not reflect it. For now, I believe that the rampant cynicism surrounding Fourth Amendment jurisprudence (“The Justices rule however they want” and “the Court is just trying to make it easier for the police” are common sentiments expressed by my students) is as important a reason as any to clarity and standardize Fourth Amendment law.