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79 Or. L. Rev. 23 (2000)
Beahvioral Analysis and Legal Form: Rules vs. Standards Revisited

handle is hein.journals/orglr79 and id is 35 raw text is: RUSSELL B. KOROBKIN* Behavioral Analysis and Legal Form: Rules vs. Standards Revisited INTRODUCTION W hen lawmakers make legal pronouncements, they must decide not only on the substance of the pronouncements, but also on their form. The choice of legal form has long been described as a choice between rules and standards.1 Rules state a determinate legal result that follows from one or more triggering facts.2 The 65 mile per hour (mph) speed limit is a rule. If a driver travels faster than 65 mph, he has violated the law. If he travels at 65 mph or less, he has not violated the law. No other circumstances are relevant to the legal consequences of the driver's act. Standards, in contrast, require legal decision makers to apply a background principle or set of principles to a particularized set of facts in order to reach a legal conclusion.' A law requiring drivers to travel no faster than is reasonable is a standard. To determine whether the driver has or has not vio- lated the law, an adjudicator must investigate the range of rele- vant driving conditions and apply the background principle of reasonableness to the situation. Most scholarly analyses of rules and standards attempt to de- termine which legal form is substantively more desirable in dif- ferent circumstances,4 usually by comparing the costs and * Visiting Professor, UCLA School of Law 2000-2001; Associate Professor, Uni- versity of Illinois College of Law and University of Illinois Institute of Government and Public Affairs. The author acknowledges the helpful comments of Chris Guth- rie, Jeff Rachlinski, and Tom Ulen as well as the other participants in this sympo- sium along with the excellent research assistance provided by Brett Griffin. I See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1685-87 (1976) (characterizing choice of form for legal direc- tives as between rules and standards). 2 See Kathleen M. Sullivan, The Justices of Rules and Standards, 106 HARV. L. REV. 22, 58 (1992). 3 Id. at 58-59. 4 Other analyses, most often associated with the Critical Legal Studies (CLS)

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