Rules and Standards in Justice Scalia’s Fourth Amendment

Rules and Standards in Justice Scalia’s Fourth Amendment

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Introduction

When looking at Justice Scalia’s approach to the Fourth Amendment, most would say he was an originalist and a textualist. Justice Scalia himself would like to explain, “I’m an originalist and a textualist, not a nut.” Although originalism and textualism were often prevalent in his Fourth Amendment decisions, even more important to his decision-making was his disdain for judicial activism. To limit judicial discretion, Justice Scalia frequently opted to impose bright-line rules rather than vague standards. This is apparent not only within his jurisprudence as a whole, but also specifically in his Fourth Amendment decisions.

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 under-inclusive, 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. 

 

Robert M. Bloom*

Eliza S. Walker**

* Professor of Law and Dean’s Distinguished Scholar, Boston College Law School.

**J.D., 2020, Boston College Law School; Law Clerk, Massachusetts Supreme Judicial Court.

Acknowledgments

Acknowledgments

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Acknowledgments

Each year, the Editor-in-Chief of the University of Richmond Law Review authors Acknowledgments to be included in their volume’s final publication. Typically in these remarks, the Editor-inChief offers their gratitude to those who have made the past year’s work possible, highlights the ups and downs that have marked their time in the role, and reflects on lessons learned after publishing a full volume of distinguished legal scholarship. In keeping with tradition, I will leave space for those matters here, as there is plenty to reflect upon and plenty to be grateful for. These Acknowledgments, however, would not be complete without due consideration of the extraordinary and historic year that has enveloped Volume 55 of our Law Review.

 A year spent as a member of a law review—any law review—is a considerable undertaking, regardless whether spent as a second year or third-year editor, irrespective of the particular position held. Even in the most conventional of times, the hours spent poring over articles, the grind of learning the intricacies of the editorial process, and the effort of collaborating with peers combine to yield a uniquely challenging, if hopefully rewarding, experience. Such was the case well before the onset of the COVID-19 pandemic. Since March of 2020, a year unlike any other in the sixty-three year history of our publication has unfolded, and with it has come no shortage of tests.

J. Lincoln WolfeEditor-In-Chief

 

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