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27 Ariz. St. L.J. 773 (1995)
Surveying the Forms of Doctrine on the Bright Line-Balancing Test Continuum

handle is hein.journals/arzjl27 and id is 783 raw text is: ARTICLES
Surveying the Forms of Doctrine on the
Bright Line-Balancing Test Continuum
James G. Wilson*
The long-standing jurisprudential controversy over whether courts should
utilize bright line rules or balancing tests has failed to inform sufficiently
lawyers and judges. For many years, most analysts contrasted rigid rules,
such as the United States Supreme Court's striking down all legislative
vetoes in L N.S. v. Chadha,' with conclusory standards, like Morrison v.
Olson's upholding special prosecutors because they did not impermissibly
undermine the powers of the Executive Branch.2      This stark dichotomy
between archetypal rules and standards can distract us from evaluating
courts' frequent application of other forms of doctrine and the foreseeable
effects of those other forms. The phrase forms of doctrine refers to such
doctrinal structures as exceptions, multiple factor tests, totality of the
circumstances tests, escape hatches, and several other hybrid variants
(containing elements of both rules and standards), all of which can appear
separately or in myriad combinations in a particular substantive area.
The rule/standard debate has not only erred empirically by failing to
consider these other forms of doctrine, but many of the rule/standard
discussions have also used inappropriate substantive criteria to evaluate the
judiciary's employment of rules or standards.       Professor Strauss, an
exponent of pragmatic functionalism, condemned        Chadha's wholesale
*    Professor of Law, Cleveland State University. A.B. 1969, Princeton University; J.D.
1974, University of Chicago. I would like to thank Sheldon Gelman, Pat McCoy, Candice Hoke,
Patty Falk, Steve Lazarus, and Phyllis Crocker for their assistance. The Cleveland-Marshall Fund
also contributed to this project.
1.  462 U.S. 919, 959 (1983).
2.   487 U.S. 654, 695 (1988). Most of my examples are from constitutional law and
administrative law, the subject areas that have been the focal point of my teaching and research. I
believe this article's basic claims apply to all other doctrinal areas.

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