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I think the discussion of discretion versus rules is a bit of a Misnomer. Most failures we can identify are the result of failures of process not of one rule or decision.

Take congress. Congress has rules on voting, committee rules, debate rules etc. But all these votes come down to the discretion of congressmen. The congressmen are selected by a voting process with strict rules which herd the discretion of millions of individual voters.

The financial crises was a failure of process. The rules failed, but individual discretion failed as well. The process in both cases has rules and human psychological factors that encouraged amplification of one school of thought. It was a process that failed from top to bottom: from people taking out loans they could never afford to large institutions that sold bundles of these things to other institutions.

What process is at its core is a collection of rules that guide discretion by individuals or groups. The two are notionally exclusive. Even the fed, which hassle discretion, has rules on how officers are appointed and approved and have rules governing decision making.

But you can't look to any one rule that could have prevented the crisis of 2008, not can you point to any one case of bad decision making. It was a failure of process. Bad rules created bad incentives which lead to poor discretion which lead to more bad rules and so on. The process amplified itself into a bubble rather than something stable.

Thomas Rekdal

The problem Judge Posner discusses is as old as philosophy. Plato has an interesting treatment of the central dilemma in his dialogue, "The Statesman," and it reappears, among other places, in every comprehensive discussion of Rule Utilitarianism versus Act Utilitarianism. The question is, are we better off relying on the prudential judgment of people of character and intelligence, or should we attempt to "bind them down" with rules of action, which, in practice, may turn out to be no more than rules of thumb for the guidance of weak minds? There is no generally satisfactory answer, because, while we would all like to expand the discretion of people of competence, and restrict that of those who lack it, there is no reliable method of identifying who is who, or of placing them in, or out, of positions of authority once we have made the correct identification. The fact that we will not always have wise statesmen at the helm is offered by the authors of "The Federalist Papers" as a modest consideration in favor the the Constitution. We can all see how that has worked out. And so the ungoing, futile effort to find an adequate substitute for wisdom. Alas, there probably is none.

Terry Bennett

In 1961, Democratic Arkansas Senator J. William Fulbright famously lamented (during the Democratic administration of JFK, the first television President), "...we have hobbled the President with too niggardly a grant of power."

In 1970, with Republican Richard Nixon sitting, he compared the President's power to address the nation on TV as the equivalent of a Constitutional amendment abolishing the co-equality of the three branches.

We want to give discretion to the people who agree with us, and we want rules to constrain those who don't agree with us.

The upside of rules is that they rain on all alike, and are thus inherently fair. The downsides are two: (a) no rule maker is sufficiently clairvoyant to anticipate all the possible scenarios to which the rule might come to be applied, and (b) rules go stale as conditions change.

The Second Amendment right to bear arms is a rule. The Founders thought it was important enough to enshrine in the Constitution Itself, rather than leave regulation to the States. Conditions have changed a lot in these 225 years, and that rule (and the lack of discretion built into it) has caused modern America some serious headaches. When advocates are asked about the practicality of assault rifles, they simply say, "It's a right", which is another way of saying it made sense 225 years ago, and nothing more.

Rules are valuable; discretion is valuable. Any viable system, as Judge Posner points out, must intertwine both.

Thomas Rekdal

Terry Bennett: A small quibble. The Second Admendment, as originally adopted, was a restriction only on the powers of the Federal government to interfere with the regulations the States themselves might adopt with respect to firearms; it implied nothing about the scope of the States' authority to regulate. Only a rather complicated, and mostly unpersuasive, judicial construction of the Second and Fourteenth Amendments now suggests that these two amendments, read together, might prohibt all governments from totally extinguishing a personal right to own any type of firearm. But that is all we have at this point. Despite the Second Amendment word magic of the NRA, a wide range of possible gun regulations would still be compatible with some form of gun ownership.

Terry Bennett

Thomas - your point is taken. The "incorporation doctrine" is as much an impediment to gun control as the original Amendment Itself (and no doubt contradicts the "doctrine of Scaliality", which I just made up).

Additional pondering: The Second Amendment starts with what is essentially a legislative finding, implying that the reason for the rule was the Framers' recognition that well-regulated militias were needed. In our time when that premise is arguably no longer true, is the Second Amendment self-nullified?

Thomas Rekdal

Terry: Yes, that is how I would have read the Second Amendment, but, as you are probably aware, the Supreme Court's Heller majority broke off the Second Amendment's "well regulated Militia" clause, leaving us with an individual right "to keep and bear arms," which presumably may not "be infringed" by either Federal or State governments. But what does that mean? I would argue that any reasonable regulation of the right which falls short of totally extinguishing it is not an infringement within the meaning of the amendment. That brings us back to the question of what would be reasonable, and to Judge Posner's wiggle-room for discretionary interpretation.

Here is another thought: If the militia clause is obsolete, why could we not substitute membership in a well regulated gun club? Why could government not condition ownership of firearms upon participation in such organizations, which might prove better judges of gun competence than mere background checks might afford? Another potentially wide field for regulation.


As for the ongoing "Gun Control" issue, the entire Pro-gun faction's position is predicated on the interpretation issue of "lifting out of context". Such that, "... the peoples right to keep and bear arms SHALL NOT be infringed" never mind the controlling clause about "A well regulated militia" and the meaning of Militias. A big "No-No" in Constitutional interpretation...

Returning to the issue at hand, "Rules, Standards and Discretion". This is the fundamental issue of Governmental legislation, "Flexibility vs. Inflexibility". Such that, overly "flexible" systems lead to legislative failure due to human nature and it's tendency towards corruption. Just as "inflexibility" leads to legislative failure by it's inability to respond to the temper and conditions of the times. So a "balanced approach" is required to acheive Legislative aims and acheive a certain degree of Justice. I could go on citing how this has affected many of the issues confronting us today, but that will take an inordinate amount of time and space and in the interest of brevity, I think I'll end it here...

bean spout

Friedman suggested a rule to limit what he saw as the growing agency problem of irresponsibility and politicization of the Fed—rising agency self-serving in an unaccountable, too big Government. All rules have to be drafted broadly enough to allow the management enough flexibility to accommodate changing circumstances. Some will be ill drafted, and fail to foresee exceptions. Rules that are too lengthy or mechanical, or seek to control everything in advance, may be well-intentioned but are often unwise. Rules only work when matters are fairly routine and predictable. To me, standards verge onto moral territory, "principles."

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