Rules that always yield to rule-free optimization cease to function as rules

Evidence

If the determination that a result is bad or in some way suboptimal is based on the full range of considerations of policy and principle that the court or anyone else would use without the rule, then what work is the rule itself doing? If our ability to perceive that a rule has generated the wrong result necessarily requires a sense of what the right result would be, and if that determination cannot be made by referring to the very rule whose soundness is now in question, then the common-law judge is deciding what the right result would be under a different rule or under no rule. And if every case in which the existing rule generates a result other than the one that appears correct in a rule-free evaluation is one that occasions a change in the rule, then why do we not just dispense with the rules entirely? — Frederick Schauer, Thinking Like a Lawyer, 222

Categorization

• SEED: A potential essay: whether rules have any genuine work if every exception is determined by outside-rule judgment — generalizes beyond law to norms, institutions, even code.
• XREF: connects to: Rules necessarily overreach their justifications because of their intrinsic generality — Frederick Schauer, Thinking Like a Lawyer, 46; Rules function as rules only if they tolerate some suboptimal outcomes — Frederick Schauer, Thinking Like a Lawyer, 223; Style rules enable skillful departure only after being mastered — Bryan A. Garner, Jeff Newman, Tiger Jackson, The Redbook: A Manual on Legal Style,…, 20 (+6 more)

Related

• Rules function as rules only if they tolerate some suboptimal outcomes (similarity 0.88)
• Rules necessarily overreach their justifications because of their intrinsic generality (similarity 0.82)
• Power functions only when few problems actually require power (similarity 0.81)
• Law deliberately accepts suboptimal answers to maximize long-term institutional correctness. (similarity 0.80)
• Decision by rule has genuine virtues that formalism deserves credit for. (similarity 0.79)
• Formalism’s refusal to consider variable factors is what gives rules their force. (similarity 0.79)

Broader Connections

• Rules function as rules only if they tolerate some suboptimal outcomes #corroborates (0.90) — Frederick Schauer, Thinking Like a Lawyer, 223
• Binary schematization’s completeness claim masks the imposition behind any dichotomy #expands (0.75)
• Style rules enable skillful departure only after being mastered #qualifies (0.50) — Bryan A. Garner, Jeff Newman, Tiger Jackson, The Redbook, 20
• Formalism disguises the need for judicial choice by freezing rule meaning #corroborates (0.40) — HLA Hart, The Concept of Law (Clarendon Law…, 370