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03/14/2020

Robert Bloom & Eliza Walker: Rules and Standards in Justice Scalia's Fourth Amendment
Michael Ramsey

Robert M. Bloom (Boston College Law School) and Eliza S. Walker (Boston College Law School) have posted Rules and Standards in Justice Scalia's Fourth Amendment (University of Richmond Law Review, forthcoming) (46 pages) on SSRN.  Here is the abstract:

This article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Rules are binding directives that leave little room for considering the specific facts of any given situation. Critics argue that they tend to be over- or underinclusive, but the value of rules is that by taking power away from the decisionmaker, they limit judicial discretion. Further, some argue that rules promote democracy because they properly leave the power to make decisions based on politics or value judgments to the legislature. On the flip side, proponents of standards argue that standards produce judgments that are less arbitrary and more substantively fair because they allow decisionmakers to consider all of the relevant facts and circumstances of the case.

Justice Scalia has been called the leading supporter of the “rules-as-democracy argument.” He argued that rules were preferable because they are more likely to ensure equal treatment among like cases, they make the law clear in a system where the Supreme Court can review only a small number of cases, and they ensure predictability.

How does this philosophy of limited judicial discretion manifest in the Fourth Amendment context? Because the Fourth Amendment specifically prohibits “unreasonable” searches—which arguably dictates a standard—Justice Scalia often sought to construct rules that could curb a limitless interpretation of “unreasonable.” Further, the Fourth Amendment context is unique because of the strong interest for police to have intelligible rules dictating the scope of any potential search.

Part One of this Article discusses Scalia’s Fourth Amendment cases in the criminal context. It first discusses his methodology when approaching Fourth Amendment cases, and then outlines the cases where he advocated for bright-line rules that would limit judicial discretion. Part Two demonstrates his departure from the rules approach in civil special needs cases and cases involving remedies for Fourth Amendment violations.