Georgia Law Review, Vol. 29, No. 3 (Spring 1995), pp. 655-692


What is the proper role of rules in federal courts law? Some scholars associated with the Legal Process assert that rules are unimportant here. They believe that the values of principled adjudication and reasoned elaboration should take precedence over the making and application of rules. The area is, in the jargon of jurisprudence, "antipositivist." Others maintain that rules do, or at any rate should, count heavily in federal courts' decisionmaking. In this Article, I argue that Legal Process scholars are right to spurn formalism in most parts of federal courts law. But the Legal Process model of federal courts law is unsatisfactory; its logic seems to reject rules altogether, yet there are areas where rules do and should control decisions. Hence I seek a different explanation for the general antipositivism of the area. This Article argues that the weak role of rules in federal courts law may be accounted for and defended without embracing the tenets of the Legal Process. On the contrary, the reason there are few strong rules in this area is related to the justifications for rule-based decisionmaking in general. Those justifications vary in strength depending on context and are comparatively weak in the federal courts context. Rather than generally embracing rules or raising a presumption against them, courts and scholars should take a pragmatic view of the role of rules in federal courts law. They should decide whether or not to make rules based on the costs and benefits of rules in the context before them. Supreme Court decisions on the role of rules in federal courts law can be understood in these pragmatic terms, though the Court itself rarely reveals its jurisprudential premises.