Inducing Moral Deliberation: On the Occasional Virtues of Fog
Legal standards are often valued for their flexibility and their susceptibility to nuanced, context-sensitive interpretation. Legal rules are usually celebrated for their clarity and certainty. The received wisdom is that the merits of the one form represent the demerits of the other. Standards, for instance, facilitate contextual, individualized application of the law and allow for greater adaptation to changing circumstances and an unfolding evolution of legal understanding, but these virtues are thought to come, unfortunately, at the expense of notice and transparency.
In this Essay, I dispute the accepted wisdom by celebrating rather than lamenting the opaque features of standards. I argue that the stock story offers an incomplete perspective. By framing the prima facie unclarity and uncertainty of legal standards as a defect, the traditional picture ignores the salutary impact that superficial opacity may have on citizens’ moral deliberation and on robust democratic engagement with the law. The superficial opacity of standards is often a virtue.
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Calculating the Standard Error: Just How Much Should Empirical Studies Curb Our Enthusiasm For Legal Standards?