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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. 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.

In criminal Fourth Amendment cases, Justice Scalia usually applied rules. He noted that rules allowed judges to serve countermajoritarian interests by protecting the rights of unpopular criminal defendants. However, Scalia occasionally strayed from his rules-oriented philosophy and applied a standard. This was especially true in cases involving civil special needs as well as cases dealing with remedies for Fourth Amendment violations. Attempts to classify Justice Scalia as favoring the government or favoring individual Fourth Amendment rights are fraught with difficulty. It is probably best to characterize him as in favor of rules in the criminal context, and in favor of standards in other contexts.


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7 Sep 2022
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  • Subject
    • Criminal Law

    • Fourth Amendment

    • Judges

    • Supreme Court of the United States

  • Journal title
    • University of Richmond Law Review

  • Volume
    • 55

  • Pagination
    • 713-763

  • Date submitted

    7 September 2022