Inducing moral deliberation: On the occasional virtues of fog

Harvard Law Review

Volumn 123, Issue 5, 2010, Pages 1214-1246

  Shiffrin, Seana Valentine ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77955502667     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (136)

1. Kathleen M. Sullivan, The Supreme Court, 1991 Term-Foreword: The Justiees of Rules and Standards, 106 HARV. L. REV. 22, 58-59 (1992).
2. See id. at 64-66.
3. Id. at 58.
4. id.
5. Of course, rules are not always simple to decipher. For instance, they may make reference to highly technical terms or to objective factors that are nonetheless difficult to discern, or, as is sometimes claimed about the rules of the tax code, they may be so voluminous as to stymie straightforward application. See Ian Ayres, Preliminary Thoughts on Optimal Tailoring of Contractual Rules, 3 S. CAL. INTERDISC. LJ. 1, 8 (1993) ("[S]tandards may be more transparent than more precise defaults.").
6. See, e.g., Sullivan, supra note 1, at 62.
7. see also FREDERICK SCHAUER, THINKING LIKE A LAWYER 194-198 (2009).
8. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1178-1179(1989).
9. See, e.g., Russell B. Korobkin, Behavioral Analysis and Legal Form.: Rules vs. Standards Revisited, 79 OR. L. REV. 23, 37-38, 53-56, 58-59 (2000) (discussing the difficulties of the uncertainty that standards introduce but denying that standards should be altogether eschewed).
10. See Seana Valentine Shiffrin, Paternalism, Unconscionability Doctrine, and Accommodation, 29 PHIL. & PUB. AFF. 205, 205 (2000).
11. See, e.g., M.P Ellinghaus, In Defense of Unconscionability, 78 YALE LJ. 757, 814-15 (1969) (arguing that the vagueness of U.C.C. section 2-302 is necessary to address tensions in modern contract law).
12. See, e.g., Arthur Allen Leff, Unconscionability and the Code - The Emperor's New Clause, 115 U. PA. L. REV. 485, 487, 504, 516 (1967) (criticizing U.C.C. section 2-302 for its reliance on subjective interpretation and application by judges, and the difficulty of determining whether a contract is invalid).
13. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (finding that, as a matter of substantive due process, punitive damages generally should not exceed nine times the amount of compensatory damages).
14. See id. at 417, 427.
15. 128 S. Ct. 2605 (2008).
16. Id. at 2627. The same passage fallaciously equated unpredictable awards with "eccentrically high" awards.
17. Id.
18. Id. (citation omitted) (citing Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897)).
19. 538 U.S. 408.
20. See id. at 425.
21. See Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1528-1532 (1988) (discussing how the "indeterminacy" of some constitutional norms and their interpretation constructively interact with and feed both political movements and more informal but transformative forms of citizen engagement and dialogue).
22. Frank I. Michelman, The Supreme Court, 1985 Term-Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 34-36 (1986) (discussing how balancing tests engage Justices in transparent forms of public reason and how open constitutional discourse by Justices engages the public).
23. Sullivan, supra note 1, at 67-69.
24. cf. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1752-53, 1764-66, 1771-1773 (1976) (focusing on judges' and officials' applications of standards).
25. But cf. William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 YALE L.J. 1623, 1659, 1670-1675 (1997) (presenting a nuanced discussion of and proposals for fashioning procedural directives and legal ethical norms in order to spark and reflect greater levels of democratic deliberation and dialogue about the form and timing of civil rights litigation, whether undertaken by individual litigants or by groups).
26. David Alan Sklansky, Police and Democracy 103 MICH. L. REV. 1699, 1776, 1811 (2005) (discussing William Muir's advocacy of self-conscious reflection by police officers and the ability of community policing programs to provide the public a role in stimulating police reflection).
27. MEIR DAN-COHEN, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, in HARMFUL THOUGHTS 37, 48-49, 65-67, 69-73 (2002) (arguing that the vagueness of certain decision rules, such as those of duress, facilitates their fair application by judges while precluding their wrongful exploitation by citizens).
28. PETER KINCAID, THE RULE OF THE ROAD: AN INTERNATIONAL GUIDE TO HISTORY AND PRACTICE 2-8, 25-39 (1986) (discussing historical origins of the rules of the road and the effects of right-hand versus left-hand rules for various forms of traffic). Some evidence suggests "keep right" results in more deaths than "keep left." Peter Kincaid speculates that this may be partly because driving is safer for right-handed drivers if their right (dominant) eye is closer to the center of the road and because most drivers are right-handed.
29. See id. at 25-39.
30. See SABINE LUTZ, SHARED SPACE INST., SHARED SRACE - FINAL EVALUATION AND RESULTS 3-19 (2009), http://www.sharedspace.eu/en/publications/downloads/doc- download/20-shared-space-final-evaluation-long (describing the Shared Space movement's theory, method, and goals and evaluating its progress).
31. Ben Hamilton-Baillie & Phil Jones, Improving Traffic Behaviour and Safety Through Urban Design, CiV. ENGINEERING, May 2005, at 39, 39-40, 45.
32. John Staddon, Distracting Miss Daisy: Why Stop Signs and Speed Limits Endanger Americans, AT-LANTIC, July/Aug. 2008, at 102, 104.
33. Shared Space Institute, http://www.sharedspace.eu/en/home (last visited Jan. 31, 2010).
34. See Hamilton-Baillie & Jones, supra note 2 2, at 44-45.
35. JEFF MAPES, PEDALING REVOLUTION: HOW CYCLISTS ARE CHANGING AMERICAN CITIES 71 n.i (2009) (quoting an interview with Monderman in Der Spiegel) (internal quotation marks omitted).
36. CSS TRANSPORT FUTURES GROUP, TRAVEL IS GOOD 30 (2008).
37. Ben Hamilton-Baillie, Shared Space: Reconciling People, Places and Traffic, 34 BUILT ENV'T 161, 167-169 (2008).
38. Sarah Lyall, A Path to Road Safety with No Signposts, N.Y. TIMES, Jan. 22, 2005, at A4.
39. Craig Whitlock, A Green Light for Common Sense, WASH. POST, Dec. 24, 2007, at A9.
40. Hamilton-Baillie, supra note 25, at 169-178
41. Hamilton-Baillie & Jones, supra note 22, at 46-47.
42. CAL. VEH, CODE § 23152(b) (West 2000).
43. See, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981).
44. See also XJ.C.C. § 2-302(1) (2005).
45. RESTATEMENT (SECOND) OF CONTRACTS § 205.
46. see also U.C.C. § 1-304.
47. FED. R. CIV. P. II(b).
48. Although it is not my focus, some of my argument also applies, indirectly, to standards using nonevaluative terms. A standard requiring the use of "thick" roof materials rather than specifying a minimum width in inches or centimeters will require a contractor to consider the purposes of the roof, the stresses it will fall under, and, most importantly, what risks are reasonable for those housed underneath the roof to bear. A more specific rule is less likely to invite this form of deliberation.
49. See, e.g., Ayres, supra note 5, at 13 ("Simple standards needlessly interject ambiguity into the law").
50. In a deep and reflective article discussing provisions of domestic and international law that prohibit "cruel," "inhuman," "inhumane," and "degrading" punishment, Jeremy Waldron celebrates the use of standards as opposed to rules because standards may improve the "quality of moral argument" by calling on us "to reflect upon and argue about whether a given practice is degrading or inhuman." Jeremy Waldron, Cruel, Inhuman, and Degrading Treatment: The Words Themselves 7-8 (N.Y. Univ. Sch. of Law Pub. Law & Legal Theory Research Paper Series, Working Paper No. 08-36, 2008). available at http://papers.ssrn.com/s0l3/papers.cfm?abstract-id=1278604. I am in utter agreement with him on this point. We may, however, part ways with respect to how the deliberation is to proceed or what its target is. He contends that we should consult "some shared sense of positive morality, some 'common conscience' we already share" rather than engaging our "own critical views on what counts as inhuman and degrading."
51. Id. at 42.
52. In my view, when applying legal standards to a situation, whether for purposes of compliance, evaluation, or adjudication, we must not only consult the shared social interpretation of that standard, but we must also invoke our own critical understanding and ask what the proper moral interpretation of the standard is. Often no shared understanding has developed, and we must engage our critical capacities to begin to form one. But, in any case, what matters most is to identify the morally correct interpretation and, in time, strive to move the shared understanding so it squares with our critical sense of what we are actually committed to. We should investigate the shared understanding not because it settles the matter, but in order to calibrate the distance between it and our critical views for purposes of social evaluation, to develop a view of which interpretation is consistent with the current reasonable expectations of others, and to ensure our interpretation does not stray too far from where other aspects of our democratic commitments would situate us.
53. I discuss the interest in being a particularized subject of respect and its connection to an under-discussed aspect of partiality in Seana Valentine Shiffrin, Immoral, Conflicting, and Redundant Promises, in REASONS AND RECOGNITION: ESSAYS FOR T.M. SCANLON (Rahul Kumar et al. eds., forthcoming 2010) (on file with the Harvard Law School Library).
54. BARBARA HERMAN, MORAL LITERACY 79-82,276-299 (2007).
55. Cf. Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CAL. L. REV. 509, 531-532 (1994) (remarking that a definitional dispute about a concept like art may "enrich[] the wider debate in which the disputed concept is deployed").
56. I am in substantial agreement with Mark Greenberg that legal pronouncements do not, ipso facto, determine the content of law, although they may have significant bearing on its content. See Mark Greenberg, How Facts Make Law, 10 LEGAL THEORY 157, 162-66, 190-197 (2004) (arguing that although law practices may contribute to the content of law, they cannot alone be fully determinative).
57. Mark Greenberg, The Standard Picture and Its Discontents 31-33 (UCLA Sch. of Law Pub. Law & Legal Theory Research Paper Series, Research Paper No. 08-107, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1103569 (describing how the legal significance of a statute or opinion may differ from what its explicit language says or connotes).
58. My claim resides in a space similar to that occupied by many popular constitutionalists although my claim is both more modest in one respect and broader in others. It is more modest in that my position is weaker than that of some popular constitutionalists. My position is that popular interpretation makes a significant contribution to our understanding of law, but I do not make the stronger claim that it does or should completely or largely determine the content of law. My focus is broader in that I take the popular contribution to law to range over the entire domain of law (or at least that encapsulated or communicated by standards) and not solely over constitutional law.
59. This argument extends the claim often made about leaving interpretive room in legislative language to allow for agency delegation to the case of citizens and the law more generally. See, e.g., SCHAUER, supra note 6, at 194-96 (discussing the advantages of making room for the contributions and insights of future decisionmakers). In this respect, it resembles some of Charles Sabel's and others' arguments about delegating back to citizens, but my argument emphasizes the moral dimensions and advantages of such delegation, whereas he and his coauthors emphasize the prudential and cooperative benefits of delegation to smaller groups of citizens.
60. See, e.g., Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 283-290 (1998).
61. Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1067-82, 1094 (2004).
62. For a longer discussion of the relationship between freedom of thought, thought development, and associations, see Seana Valentine Shiffrin, Essay, What Is Really Wrong with Compelled Association?, 99 Nw. U. L. REV. 839 (2005).
63. For a related discussion, see Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 HARV. L. REV. 708, 747-748 (2007), which examines the application of moral norms to corporate behavior in the promissory context.
64. Thus, I disagree with the sentiment that "[p]rivate citizens ⋯ are not fundamentally empowered by law; they are merely required to obey its commands." Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CAL. L. REV. 491, 492 (1994).
65. 29 C.RR. § 1604.11(a) (2009).
66. The progress made through such consciousness-raising may sometimes be facilitated by the complementary assistance of rules and more concrete guidelines, especially in early days. Cf. infra p. 1240.
67. THOMAS NAGEL, THE LAST WORD 19 (1997) (emphasis omitted).
68. Indeed, this was Holmes's famous position: "[A] legal duty ⋯ is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court⋯'' Holmes, supra note 15, at 458.
69. See Ian Ayres, Default Rules for Incomplete Contracts, in I THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 585, 587-588 (Peter Newman ed., 1998) (using the examples of contra proferentem and penalty default rules).
70. U.C.C. §2-305(1) (2005).
71. See Ayres, supra note 47, at 587.
72. Ayres, supra note 5, at 11-12 (arguing that no default quantity would satisfy most parties)
73. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 95-97 (1989).
74. 9 Ex. 341, 156 Eng. Rep. 145 (1854).
75. Id. at 151-152.
76. Ayres & Gertner, supra note 49, at 101-104 (discussing Hadley).
77. But see Eric A. Posner, There Are No Penalty Default Rules in Contract Law, 33 FLA. ST. U. L. REV. 563 (2006).
78. Penalty default standards could be used, however, to similar effect on the parties. See, e.g., Ayres, supra note 5, at 9-15. But depending on how hazy and open-ended the terms, their deployment might undermine one of the main motivations for using penalty defaults, namely, to save the judiciary from having to investigate and substitute judgment for the parties. One of the spurs to negotiate out of the penalty default rule is how clear it is that an untoward result will ensue if one does not.
79. See, e.g., Ayres & Gertner, supra note 49, at 97-100.
80. See JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 24-25 (Currin Shields ed., Library of Liberal Arts 1958) (1861) ("[As t]he first element of good government ⋯ being the virtue and intelligence of the human beings composing the community, the most important point of excellence which any form of government can possess is to promote the virtue and intelligence of the people ⋯").
81. JOHN RAWLS, A THEORY OF JUSTICE 395-587 (1971).
82. Shiffrin, supra note 41, at 714 (discussing a just society's dependence on a moral citizenry).
83. See Shiffrin, supra note 41, at 710-719 (developing this position in greater depth).
84. See Ann E. Carlson, Recycling Norms, 89 CAL. L. REV. 1231, 1251-52, 1269-70, 1285 (2001) (discussing use and effectiveness of persuasive techniques in recycling campaigns).
85. 319 U.S. 624 (1943).
86. 430 U.S. 70s (1977).
87. See Vincent Blasi & Seana V. Shiffrin, The Story of West Virginia State Board of Education v. Barnette: The Pledge of Allegiance and the Freedom of Thought, in CONSTITUTIONAL LAW STORIES 409 (Michael C. Dorf ed., 2d ed. 2009).
88. see also Shiffrin, supra note 40.
89. This may seem like a strange claim given that these standards are legally enforceable: if one gets it wrong, a judge or jury may impose punishment or another remedy. True enough, but unlike pre-dictated content meant to be absorbed without deliberation, standards often allow for a range of acceptable alternative methods of compliance. Further, one may present one's reasons for one's interpretation to adjudicators who are open to persuasion.
90. This marks a related difference from the sort of deliberation induced by mandatory speech with opt-out provisions, such as the pledge (as well as similar provisions for prayer that have been struck down). One may think that all citizens should consider how they conceive of their relation to the state - whether that relation is one of fealty and whether it takes the same form as the state's conception of fealty. However, the pressure to deliberate feels objectionably coercive when it is exerted on these specified occasions in which one must register one's dissent in public, without much control over how that dissent is presented, and without any meaningful opportunity to discuss or explain one's position. Thus, I agree with Michael Seidman's criticism of the opt-out pledge, though I disagree that his criticism is properly targeted at Bamette's holding that the mandatory pledge is unconstitutional; rather, I think the criticism speaks in favor of taking Barnette further and treating the pledge in the same way that mandatory prayer has been handled.
91. See Louis MICHAEL SEIDMAN, SILENCE AND FREEDOM 153-166 (2007).
92. see also Blasi & Shiffrin, supra note 60, at 449-53.
93. 505 U.S. 833 (1992).
94. See id. at 844.
95. See, e.g., GA. CODE ANN. §§ 31-9A-3 to -4 (2009).
96. LA. REV. STAT ANN. § 40:1299.35.6 (2008).
97. MISS. CODE ANN. §§ 41-41-133, -35 (2009). A comprehensive list of the thirty-four states that impose mandatory counseling and the twenty-five states that impose a waiting period appears in GUTTMACHER INSTITUTE, STATE POLICIES IN BRIEF: COUNSELING AND WAITING PERIODS FOR ABORTION (2010), available at http://www.guttmacher.org/statecenter/spibs/ spib-MWPA.pdf.
98. Although it is not aimed to encourage moral deliberation in particular, I have in mind the quite different design of the Federal Trade Commission's "Cooling Off" rule, which permits buyers in a door-to-door sales transaction (that is, buyers who have not sought out the sale and may, reasonably, be unfamiliar with the product) three business days to rescind the transaction in case, upon reflection, the transaction seems undesirable. See 16 C.F.R. § 429 (2009). Although buyers are afforded time to reconsider, they are neither required to wait three days to transact nor to take affirmative action to complete the transaction after three days.
99. See id.
100. See Brief for Petitioners and Cross-Respondents, Casey, 505 U.S. 833 (Nos. 91-744, 91-902), 1992 WL 551419, at *16, *39~40.
101. Sylvia A. Law, Abortion Compromise - Inevitable and Impossible, 1992 U. ILL. L. REV. 921, 940 (listing burdens of requirement).
102. See Law, supra note 67, at 940 (noting that the requirements made false assumptions about women's decisionmaking processes).
103. Evidence suggests that even minors take the decision whether to abort seriously and deliberate beforehand. See Stanley K. Henshaw & Kathryn Kost, Parental Involvement in Minors' Abortion Decisions, 24 FAM. PLAN. PERSP. 196, 205 (1992) (observing that in their study of 1500 abortion decisions by minors in states without parental notification requirements, "[a]ll minors reported that at least one person - a relative, a friend or a professional - had taken part in the decision process or had helped them arrange the abortion").
104. See Brief for Amicus Curiae American Psychological Ass'n in Support of Petitioners, Casey, 505 U.S. 833 (Nos. 91-744, 91-902), 1992 WL 12006 399, at *I8-20. It is not always inappropriate for the government to discourage the exercise of a right. For instance, the government might appropriately discourage protected racist speech, even in public fora. But discouragement of the exercise of a right is a delicate matter and must be done in ways that do not harass, imply repercussions for resisting the discouragement, or insult citizens who resist the discouragement by, for instance, suggesting they are incompetent or disloyal. It is one thing to discourage racist speech through general education campaigns or calls for tolerance; it is another thing to demand authors undergo racial sensitivity training on the eve of the publication of their racist book. I hope it is evident that I do not regard the parallel between having an abortion and engaging in racist speech as extending any further than the fact that both involve the exercise of a fundamental right in a way disfavored by many.
105. 497 U.S. 261 (1990).
106. See, e.g., James Lindgren, Death by Default, LAW & CONTEMP. PROBS., Summer 1993, at 185, 219-220 (arguing that the Missouri law and other similar laws are penalty default rules because polls suggest that most people would prefer termination rather than life support in a variety of end-of-life situations).
107. See Cruzan, 497 U.S. at 282-283.
108. See, e.g., Jane Seymour et al., Planning for the End of Life: The Views of Older People About Advance Care Statements, 59 SOC. SCI. & MED. 57, 63-66 (2004) (discussing some elderly patients' resistance to advance care directives because they prefer a nonstatic, dynamic decisionmaking procedure that more actively involves family members and more nuanced forms of trust in medical professionals).
109. See Lewis M. Cohen et al., Denying the Dying: Advance Directives and Dialysis Discontinuation, 38 PSYCHOSOMATICS 27, 29-31 (1997) (discussing literature on death denial and reporting a study in which seriously ill patients and their doctors largely lacked advance directives and failed to remember conversations about terminal care preferences).
110. Lewis M. Cohen et al., Patient Attitudes and Psychological Considerations in Dialysis Discontinuation, 34 PSYCHOSOMATICS 395, 398-399 (1993) (discussing denial phenomena even among those aware of the opportunity for advance directives and concluding "it may be unrealistic to expect healthy or chronically ill individuals to render binding agreements regarding life support," id. at 399).
111. Louise Harmon, Fragments on the Deathwatch, 77 MINN. L. REV. 1, 91-129 (1992).
112. But see Seymour et al., supra note 74, at 63-66 (identifying factors other than denial that may account for reluctance to write advance care directives, including concern that one's views may change).
113. Camilla Zimmermann, Death Denial: Obstacle or Instrument for Palliative Care? An Analysis of Clinical Literature, 29 SOC. HEALTH & ILLNESS 297, 302-303 (2007) (critiquing methodology of some studies on denial and advance directives for apparently equating denial with failure to write advance directives rather than showing a causal relationship).
114. See Michelle Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 BUFF. L. REV. 703, 708-10, 728-33, 752-753 (2000) (discussing literature on early sexual experiences).
115. I recognize this is complicated ground. Whether and to what degree sexual activity between adults and minors is harmful may depend upon the age difference, the gender of the participants, and the cultural setting. See WILLIAM N. ESKRIDGE, JR. & NAN D. HUNTER, SEXUALITY, GENDER, AND THE LAW 158-163 (2d ed. 2004). Possibly, some relations for some minors in particular settings may be consensual and not harmful, but for many others these encounters may be psychologically traumatic and may also have long-lasting physical, social, and personal effects, for example those incurred from teen pregnancy.
116. See Oberman, supra note 76, at 704-706, 705 nn.6-9 (discussing literature on the risks of adolescent sexual activity). These harms are substantial enough to justify even those rule-like formulations that may preclude or deter less deleterious encounters among the willing.
117. There may, however, be grounds for adjudicators or enforcement officers to apply a more standard-like norm (or decision "rule") when assessing guilt, level of culpability, or excuse. See DAN-COHEN, supra note 20, at 42-43, 58-62.
118. see also Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257, 268 (1974) (discussing the advantage of a clear, numerical speeding rule coupled with officer discretion to waive a ticket when the speeding driver is responding to an emergency).
119. See William J. Stuntz, Unequal Justice, 121 HARV. L. REV. 1969, 2039 (2008) (discussing German legal doctrine that permits the general defense that even if the elements of a crime are satisfied, the conduct "was not sufficiently 'wrongful' to merit punishment").
120. see also GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 779-798 (Oxford Univ. Press 2000) (discussing the German doctrine).
121. Markus Dirk Dubber, Theories of Crime and Punishment in German Criminal Law, 53 AM. J. COMR L. 679, 680-681 (2005).
122. Heribert Schumann, Criminal Law, in INTRODUCTION TO GERMAN LAW 387, 394-397 (Mathias Reimann & Joachim Zekoll eds., 2d ed. 2005).
123. See Ehrlich & Posner, supra note 78, at 267-271.
124. Kennedy, supra note 18, at 1694-1699.
125. See Kennedy, supra note 18, at 1695 (noting "the mechanical arbitrariness of rules and the biased arbitrariness of standards").
126. See ANDREI MARMOR, LAW IN THE AGE OF PLURALISM 190-191 (2007) (criticizing the idea that potential criminals have any additional claim to predictability of punishment over and above more general claims to be treated fairly and with proportionality).
127. Kennedy, supra note 18, at 1695-1696 (noting that rules facilitate gaming behavior by the bad man and that uncertainty may provoke moral behavior by making people cautious in order to avoid crossing a line they cannot discern).
128. See Waldron, supra note 36, at 535 ("The citizen needs to know what the law requires of him, but that is not necessarily the same as needing to know exactly how far he can go before his behavior becomes an infraction.").
129. There may be social interests in ensuring that remedies are sufficiently predictable to allow for the underwriting and availability of insurance. These interests may be served, however, through insurers' setting policy limits based on frequency of occurrence rather than solely through precise rules.
130. Stuntz, supra note 79, at 2034-2039.
131. See also Kennedy, supra note 18, at 1705-07, 1771-1777 (discussing how standards may empower adjudicators and offer an avenue for resisting dominant, but flawed, ideology).
132. That is, the opportunity to consult with moral agents and to predict their judgments may suffice to provide adequate notice for the inveterate amoralist. Nonetheless, as I argue above, an individual's habitual practice will be insufficient for understanding the law and for compliance with its spirit. A general, widespread, social approach of this sort will fail to provide determinate content and to achieve compliance with its letter as well. See supra p. 1228.
133. See SCHAUER, supra note 6, at 192 (discussing specificity of provisions in the South African Constitution as reflecting an understandable reluctance "to grant discretion to mostly the same police officers, prosecutors, and judges who had been in power during apartheid").
134. Kennedy, supra note 18, at 1706 (making a similar point about the judiciary's introduction of rules to control the executive).
135. See Kennedy, supra note 18, at 1702-1705 (discussing the role of rules in areas of "moral flux," id. at 1704).
136. See Joshua Cohen, Deliberation and Democratic Legitimacy, in DELIBERATIVE DEMOCRACY 67, 79 (James Bohman & William Rehg eds., 1007) (arguing that "[i]nstitutions in a deliberative democracy do not serve simply to implement the results of deliberation," but also to establish the conditions to "make deliberation possible" (emphasis omitted)).