A Positive Political Theory of Rules and Standards

Abstract

In this article, we present a positive political theory (PPT) of how and why the dominant doctrinal forms of rules and standards are created. In contrast to many scholars who claim that one approach is uniformly preferable to another, we illustrate that rules and standards can each be advantageous. We identify a range of factors, including the political-ideological makeup of both higher and lower courts, that determine which doctrinal approach will be preferable under given circumstances.