Rules, Standards and Bush V. Gore: Form and the Law of Democracy

Abstract

This Article examines the judicial opinions in Bush v. Gore in order to expose new and critical insights about the rules and standards that govern democracy. Although commentators have analyzed the rules versus standards debate in other contexts, none have addressed the effect of form on the law of the political process. This Article is the first to make key observations about form, as well as its unique importance to the regulation of democracy. The Article proposes that the choice between rules and standards in the law that governs democracy is motivated by democratic sensibilities. Individuals harbor different conceptions of how democracy is supposed to work, and about which actors are least biased, most competent, and generally best positioned to make decisions about the workings of democracy. Based on these assumptions, lawmakers and decisionmakers sometimes choose to formulate and interpret legal directives as more rule-like or more standard-like as a means of allocating what they consider to be an appropriate amount of discretion to a particular actor. Form serves an essential function in the legal structure that regulates democracy, and is a necessary consideration in analyzing electoral reforms and the jurisprudence of the political process.

JEL Classification: K10, K19