In his Essay, Professor Faigman accepts the proposition that the choice between rules and standards does not specifically affect constitutional outcomes. He maintains, however, that the choice still has great significance for constitutional adjudication. As he observes, the choice profoundly affects how the story is told. Professor Faigman identifies and discusses the distorting effects that result from the Court's too ready employment of a rules-based constitutional method. First, he notes the distinct similarity between many constitutional rules and the standards based methods these rules are meant to replace. Second, he identifies how employment of rules regularly shifts the burden of proof to the challenger of the government action to disprove the basis for the government interests used to define the rule. Finally, Professor Faigman discusses how the full debate of constitutional values that is inherent in standards-based methods is essential to a well-functioning constitutional democracy.
David L. Faigman,
Constitutional Adventures in Wonderland: Exploring the Debate between Rules and Standards through the Looking Glass of the First Amendment,
44 Hastings L.J. 829
Available at: https://repository.uchastings.edu/hastings_law_journal/vol44/iss4/2